Blanchard v. Baker

• Decision Date: 31 January 1860
• Citation: 29 Mo. 441
• Parties: BLANCHARD et al., Respondents, v. BAKER et al., Appellants.
• Court: Missouri Supreme Court

29 Mo. 441

BLANCHARD et al., Respondents,

v.BAKER et al., Appellants.

Supreme Court of Missouri.

January Term, 1860.

1. A. conveyed certain real estate to B. in trust to secure a debt due C. Afterwards D. obtained a judgment against A. and the interest of A. in said real estate was levied on and sold under the judgment, and D. became the purchaser. Previous to this purchase the trust debt had been satisfied. The trustee (B.) afterwards sold said real estate under the deed of trust and C. became the purchaser. Held, that D. was entitled to a decree of title against C.

2. Under executions issued upon judgments of the Weston court of common pleas, the marshal of the city of Weston may levy upon and sell real estate. He may make such sale in the city of Weston, where the court is held. (Sess. Acts, 1851, p. 203.)

Appeal from Buchanan Circuit Court.

The following is the finding of the facts by the court; “Now at this day this cause came on to be heard by the court on the pleadings, exhibits and proofs, and the court, being sufficiently advised, doth find that the debt due by the McDonalds and Adams to Robert Campbell, one of the defendants, to secure which the deed of trust of Thomas D. S. McDonald and wife to Elijah Cody, Alfred H. Foster and John T. Baker prayed to be set aside was executed, was satisfied by Adams before the sale of property in said deed mentioned was made by the trustees, at which sale E. W. Railey became the purchaser, and not complying with the sale Robert Campbell, the defendant, was substituted to the right of said Railey under such purchase. The court further finds that the plaintiffs, after said debt was satisfied, became the purchasers at marshal's sale under execution from the Weston court of common pleas, and have obtained a deed to said property from the marshal of said court. It is therefore adjudged, ordered and decreed that the deed of trust of said McDonald and wife to said Cody and others as trustees be cancelled and set aside, and that the deeds made by said trustees to E. W. Railey and by said Railey to Campbell be also set aside, and that the title to the lots in said deed of trust mentioned, to-wit, lot No. 13 and part of lot No. 10, in block No. 52, in the town of Weston, county of _________, state of Missouri, be vested in the plaintiffs; to have and to hold the same against the said defendants herein; and that the plaintiffs recover possession of said property, and their costs in this suit expended, for which possession and costs the plaintiffs may have execution,” & c.

Hall & Loan, for appellants.

I. The finding of the facts by the court is defective and insufficient. (17 Mo. 553; 21 Mo. 140; 19 Mo. 123.) There are only three facts found--that the debt of $3,510 due to Campbell was satisfied prior to the sale by the trustees under the deed of trust--that the plaintiffs, after the debt was satisfied, became the purchasers of the property at marshal's sale under execution from the Weston court of common pleas--that they have obtained a deed therefor from the marshal of said court. These are not the facts put in issue by the pleadings. The petition substantially charges that plaintiffs acquired the title of the McDonalds to the land mentioned in the petition. This fact the court failed to find; it is therefore to be considered as negatived. (Bates v. Bower, 17 Mo. 553.) There is also a failure to find the facts, the judgments, levies and sale, &c., upon which this ultimate fact rests. It says the debt was “satisfied.” The question of payment is not touched. The facts showing a satisfaction are not found. (19 Mo. 123; 21 Mo. 140; 18 Mo. 110.) The court failed to declare the law upon the facts found. (17 Mo. 533; 15 Mo. 402; 22 Mo. 577; 28 Mo. 486.) Upon the facts found the judgment should have been for the defendants. The deed of the marshal was void. There was no law authorizing him to make such deed. The sale was made in the town of Weston, when by law it should have been made at the court-house at the county seat of Platte county. It was not made whilst the circuit court was in session as required by law. (18 Mo. 580.) The court erred in admitting the deed in evidence. (Sess. Acts, 1851, p. 203.)

Ryland & Son and Burnes, for respondents.

I. The finding supports the judgment. (17 Mo. 158, 550; 19 Mo. 325.) If the court failed to find a material fact, the defendants should have moved for a review. The court found the main fact, the payment to Campbell of the debt due him. The marshal's deed was properly received. (4 Monr. 319; 2 Monr. 202; 3 Mon. 339.) The Weston court has jurisdiction coextensive in all civil cases with the circuit court within the territory over which its jurisdiction extends.

EWING, Judge, delivered the opinion of the court.

This action was commenced under the practice act of 1849, and was tried by the court. The facts were found by the court, and judgment entered upon the finding; but there was no motion for a review in the court below. The only question therefore for our consideration is whether the finding supports the judgment.

The respondents, plaintiffs below, were judgment creditors of D. & T. D. S. McDonald, and in 1854 obtained judgments for various large sums, in the Weston common pleas court, against said McDonalds; upon which executions were issued and levied on certain real estate, town lots in Weston, as their property, which was sold by the marshal of the common pleas court. At the sale the respondents became the purchasers for the sum of forty dollars. It further appears from the petition, that, previously to the rendition of said judgments, to-wit, in June, 1853, the said T. D. S. McDonald conveyed to two of the defendants, Cody, Foster, and another since deceased, the same lots which were sold to the plaintiffs at the marshal's sale, in trust to secure Robert Campbell, another defendant, who was also a party, the payment of a note given by the firm of McDonald & Adams for $3.510.09, dated June 15, 1853, due at six months. It is also alleged that said sum of money and interest has been fully paid, and that said property is not released, but continued apparently in force, and so insisted to be by Campbell and McDonald for the purpose of protecting said real estate from McDonald's creditors; that defendant Baker is in possession of said real estate as Campbell's tenant. It is also alleged that the trustees in said deed of trust, at Campbell's request, in September, 1854, offered for sale said real estate, and it was sold to one E. W. Railey for $1,900; that he refused to take the same on account of some objection to the title, and, by some means unknown to plaintiff, Campbell was substituted as the purchaser, and a deed made to him by the trustees; that nothing was paid by Campbell for the property, the amount being allowed as a credit on said note, which Campbell knew had been fully paid, and that said trustees had no right to sell. The petition asks that the trustees be compelled to release said real estate...