Blodgett v. Perry

• Decision Date: 04 March 1889
• Citation: 10 S.W. 891,97 Mo. 263
• Parties: Blodgett, Appellant, v. Perry
• Court: Missouri Supreme Court

10 S.W. 891

97 Mo. 263

Blodgett, Appellant, v. Perry

Supreme Court of Missouri

March 4, 1889

Error to Johnson Circuit Court. -- Hon. N. M. Givan, Judge.

The petition in this case, an action of ejectment, was in the usual form. In his answer defendant admitted his possession of the property, but denied all other allegations of the petition. The defendant then as an equitable defense set up the following new matter:

"For further answer to said petition, defendant says that both parties to this action claim title through and under one Amos M. Perry, who was formerly the owner in fee of the real estate in controversy; that heretofore, to-wit, on the twenty-sixth day of July, 1870, the Union Bank of Missouri commenced an action by attachment against said Amos M. Perry in the court of common pleas in and for the county aforesaid that the writ of attachment in said cause was duly levied on the lands in controversy, and notice by publication duly given to said defendant, and at the September term, 1870, of said court a special judgment, in favor of said bank, and against said land as the property of said Amos M. Perry, was duly rendered; that on the twenty-sixth day of November 1870, a special execution was issued upon said judgment and levied upon the real estate in controversy, and after due advertisement, during the December term, 1870, of said court while said court was in session, said real estate was exposed to sale and sold to the highest bidder for cash, in all respects in accordance with the law; that at said sale said bank was a bidder for said land; that at said sale one Wm. D. Shumate, being the highest, best and last bidder, became the purchaser of the real estate in controversy; that the plaintiff herein was the attorney for the Union Bank aforesaid in its action against said Perry from its inception to its termination; that the defendant holds under said Shumate, and has acquired by proper conveyances all the title of said Shumate in said land; that the sheriff who made the said sale thereafter executed a deed in due form to this defendant as the assignee of the rights of said Shumate in said land; that the plaintiff now claims to own said real estate by conveyance from said Union Bank, dated long after said sale to said Shumate; that said plaintiff claims that said bank had purchased said real estate of said Amos M. Perry and was the owner thereof prior to the aforesaid sale to Wm. D. Shumate; that at the sale under the execution aforesaid, said Shumate, relying upon the acts of said bank in attaching, advertising and selling under execution the real estate in controversy, as the property of Amos M. Perry, as a declaration, admission and assertion of said bank that it was not the owner of said real estate and that said Amos Perry was the owner thereof, purchased the same and paid therefor a valuable consideration; and this defendant, his assignee, has received in due form from the sheriff who sold the same a deed conveying said land to him; that said Blodgett purchased of said bank with full knowledge of all the foregoing facts; that said bank was estopped, debarred and precluded from asserting any title to said real estate, acquired from said Amos M. Perry by said bank, prior to said sale to said Wm. D. Shumate."

Defendant offered in evidence the following order made by the Johnson circuit court on October 23, 1885:

"Now at this day this motion coming on for hearing is taken up and submitted to the court; and it appearing that due notice has been given to the defendant, the court finds that heretofore, to-wit, on the twenty-second day of December, 1870, and prior thereto, the defendant, Jehu H. Smith, was the duly qualified and acting sheriff of the county of Johnson, in the state of Missouri. That on said day, under and by virtue and authority of a special execution, duly issued to him out of the court of common pleas for said county on November 26, 1870, and received by him on November 28, 1870, under and by authority of and to execute a judgment rendered in said court on September 26, 1870, for $ 465.60 in favor of the Union Bank of Missouri against one Amos M. Perry, and made special as to the lands hereinafter described, said sheriff did, after due advertisement, expose to sale in accordance with law, and sell to William D. Shumate, the highest and best bidder for cash in hand, the following described real estate, situate in Johnson county, Missouri, to-wit: (describing it). The said sale was duly made at a regular term of court while said court was in session; that said Shumate bid for above and other tracts of land the sum of five hundred and four dollars, and paid said sum to said sheriff and received a certificate of purchase from him for said real estate. That this plaintiff has acquired all the rights of said Shumate of, in and to said real estate, by conveyance in due form and is now the owner and in possession of said real estate. It is therefore ordered by the court that the defendant, as such late sheriff, execute a proper deed to the said N.W. Perry for the aforesaid real estate, and that plaintiff pay the costs thereof."

Defendant introduced in evidence a deed from J. H. Smith, late sheriff, to the land in controversy, said deed having been made in pursuance of said order of the circuit court.

The defendant read in evidence the deposition of F. M. Cockrell:

"I have personally known plaintiff since the spring of the year 1866, and have often read his writing and seen him write, and know his handwriting. I have examined the petition, affidavit and bond, the attachment suit of the Union Bank of Missouri, plaintiff, against Amos M. Perry, defendant, in the Johnson court of common pleas, and find that the names 'Elliott and Blodgett & G. C. Land, attorneys for plaintiff,' signed to the petition are in the handwriting of Col. Wells H. Blodgett; and the name 'Wells H. Blodgett' signed to the affidavit attached to said petition is in the handwriting of said Blodgett, and the name, 'Wells H. Blodgett,' signed to the bond in said suit is in the handwriting of said Blodgett. At that time, July, 1870, said Blodgett and I both resided in Warrensburg, Mo., and were practicing law in the same courts. I was present on or about December 22, 1870, when the lands of the defendant, A. M. Perry, as attached in said suit, were sold by J. H. Smith, then the sheriff of Johnson county, Mo., under the execution of fieri facias issued in said cause, and saw Mr. William Shumate, who became the purchaser at said sale, and Mr. G. C. Land and Col. Wells H. Blodgett and was conferring with Mr. Shumate before and while he was bidding on said land against Mr. G. C. Land. After several bids had been made, Mr. Land conferring with Mr. Shumate, and I also conferring with Mr. Shumate, and Mr. Land then consulted Col. Blodgett, who was either standing near or in the court room, and it was agreed that Mr. Shumate should bid the amounts of the judgments, interests and costs, and should become the purchaser of the lands being sold at that amount, and Mr. Shumate thereupon bid amounts sufficient to make in the aggregate the judgments, interests and costs, and became the purchaser thereof. Mr. Shumate was acting under my advice, which was, that his purchase under that execution would be good, and that the sale of the lands of A. M. Perry by the bank under that execution would bar and estop the bank from asserting title under any former sale and purchase by such bank. Mr. Shumate died about January, 1875."

The deposition of plaintiff was read in evidence, wherein he stated as follows: "In the year 1870, I resided at Warrensburg, Mo., and was practicing law there. I was in partnership with G. N. Elliott, and the style of our firm was Elliott & Blodgett. We had no other partner. Garrett C. Land, at that time a young attorney, since deceased, had a desk in our office, and was at that time attorney for Union Bank of Missouri and had its business under his charge and control. He brought and carried through the suit under which it is claimed Shumate purchased. All of the body of all the papers in the judgment roll are in his handwriting. I signed the papers to which my signature appears for his accommodation. I have read over Gen. F. M. Cockrell's deposition and I have no recollection of being present at the sale to which he testifies, or making any agreement whatever as testified to by him."

Reversed.

H. S Priest and S. P. Sparks for appellant.

(1) The sheriff's deed of October 20, 1866, conveyed to the Union Bank of Missouri all the title of Amos M. Perry. On its face the deed is a perfect instrument, and no evidence of any sort was offered by defendant to impeach it. The deed contains every recital required by statute. The execution was special and was a lien on the lands without any formal levy, and it does not appear that the sale was made after its return day. Executions may be made returnable at the second as well as at the first term of court succeeding their issue. 1 Wag. Stat sec. 4, p. 602. Again, the execution being special, and being a lien upon the property decribed therein without a formal levy, if for any cause a sale was not made at the first term of court, the execution, and, in case of a levy, the lien of such levy remained in force until the end of the second term, and until a term of court was held at which the real estate might be sold. 1 Wag. Stat. sec. 51, p. 611. If a sale is not made at the first term of court two things are continued in force by the plain letter of the statute: First, the execution is continued in force, and second, the lien of the levy, if one has been made by the sheriff, is also continued in force. But if an execution is special, no levy is required, and it is only necessary to continue...