Bristow v. Thackston

Decision Date15 March 1905
PartiesEUNICE BRISTOW et al., Appellants, v. THACKSTON et al
CourtMissouri Supreme Court

Appeal from Randolph Circuit Court. -- Hon. John A. Hockaday, Judge.


B. S Head for appellants.

(1) Plaintiffs obtained their title to the real estate in controversy from Josephine Hurt through the liens of a judgment and of a deed of trust and garnishment proceedings. While said liens were in force and of public record and said garnishment proceedings were pending, the defendants purchased the property from said Josephine who delivered them possession. In answer to plaintiffs' petition in this suit, defendants attempt to plead that they are innocent purchasers without notice. This being an affirmative defense the burden is on them to properly plead and prove it. Their plea in that behalf is too general and indefinite. They should have denied fully and in the most precise terms every circumstance from which notice could be inferred. Halsa v. Halsa, 8 Mo. 303; Wallace v. Wilson, 30 Mo 335; Holdsworth v. Shannon, 113 Mo. 508; Ins. Co. v. Smith, 117 Mo. 292; Young v. Schoolfield, 132 Mo. 650; Bierman v. Crecelius, 135 Mo. 386. (2) Hamilton, having purchased the land from Josephine Hurt while the garnishment was pending against her, stands in her shoes and necessarily shares the same fate. 21 Am. & Eng. Ency. Law (2 Ed.), 595; Bailey v. Winn, 113 Mo. 155; Dodd v. Lee, 57 Mo.App. 167; Hall v. Morgan, 79 Mo. 50; O'Riley v. Nicholson, 45 Mo. 160; Turner v. Babb, 60 Mo. 342; Real Estate Savings Inst. v. Collonious, 63 Mo. 290; Holloway v. Holloway, 103 Mo. 274; Mason v. Black, 87 Mo. 329. (3) When there is actual or constructive notice of pendency, the judgment or decree binds the property in the hands of the pendente lite purchaser and affixes him with knowledge, not only of the issues directly involved in the litigation, but also of those as to which, though merely collateral thereto, the record puts him upon inquiry. Hamilton had both actual and constructive notice of the pendency of the garnishment against Josephine Hurt and the record of that proceeding shows that she was garnished for a debt secured by deed of trust on the property she proposed to sell him; and he should have known that a judgment against the garnishee for that debt would carry with it all liens collateral to secure it. 21 Am. and Eng. Ency. Law (2 Ed.), 598; McIlwrath v. Hollander, 73 Mo. 105; Dodd v. Lee, 57 Mo.App. 167; Patterson v. Booth, 103 Mo. 402; Burnham, Munger & Co. v. Smith, 82 Mo.App. 35. (4) The Hamiltons base their title on a general warranty deed from Mrs. Hurt which is executed to them, as appears on its face, "subject to judgments, liens and taxes of record, which are a lien against said property." Such a recital in the deed, tendered to them as a muniment of title, necessarily put them upon inquiry as to what liens and judgments were against the land at the time of their purchase. Mason v. Black, 87 Mo. 341. (5) The result of that garnishment proceeding was a judgment against Mrs. Hurt which operated as a legal transfer to the execution plaintiff of the deed of trust given on the land by said garnishee to secure the garnished debt. The rights and credits in the hands of the garnishee were not encumbered with any trust, as Walter Hurt, the cestui que trust in the deed of trust, held the whole beneficial interest while the trustee had the mere formal legal title. 14 Am. and Eng. Ency. Law (2 Ed.), 745; Lackland v. Geresche, 56 Mo. 267; Sheedy v. Bank, 62 Mo. 17; Sloan v. Campbell, 71 Mo. 387. (6) The defendants Hamilton were in privity of estate with the defendants Walter and Josephine Hurt in the judgment and decree rendered against the latter and in favor of the plaintiffs in this suit on September 14, 1901. In that suit the validity of the deed of trust, the basis of plaintiffs' title, and the validity of Walter Hurt's release deed, the basis of defendants' title, were directly in issue. The deed of trust was sustained and the release deed set aside. As to these two documents, the matter is res adjudicata, and the defendants Hamilton can not in this suit go behind the decree in that suit for the purpose of showing a state of facts which might have been set up as a defense to the action in which said decree was rendered. 24 Am. and Eng. Ency. Law (2 Ed.), 765; State ex rel. v. St. Louis, 145 Mo. 551; Donnell v. Wright, 147 Mo. 639; Johnson v. Realty Co., 167 Mo. 325; Bierman v. Crecelius, 135 Mo. 386. (7) A verdict or finding of a court can not be allowed to stand unless there is some substantial evidence to support it. There is no evidence to support the judgment in this case. Flynn v. Wacker, 151 Mo. 545; Whitmore v. Crawford, 106 Mo. 435; James v. Life Assn., 148 Mo. 1; Kohn v. Kansas City, 108 Mo. 387.

Willard P. Cave, J. H. Lamotte and John H. Hamilton for respondents.

(1) The statute fixes the commencement, extent and duration of the lien of a general judgment; it begins on the day of the rendition thereof. R.S. 1899, sec. 3714. (2) Notice lis pendens has no application where a general judgment is rendered; lis pendens is designed to hold certain specific property which must be referred to in the judgment or decree; a mere money judgment is based on an action in personam; there is no res litigiosa in actions in personam. "This is equally the case whether the cause of action is one arising ex contractu or ex delicto; the reason is obvious; were the rule otherwise, it would be in the power of an unjust claimant to greatly embarrass and finally destroy the business of a defendant; it would tend to a prohibition in dealing with defendants." 13 Am. and Eng. Ency. Law (1 Ed.), 879; Gardner v. Peckham, 13 R.I. 102; Sanders v. McDonald, 63 Md. 503; Davey's Appeal, 97 Pa. St. 153; 2 Black on Judgments (2 Ed.), sec. 550. (3) Appellants contend that they purchased the equitable interest of Walter Hurt by a sale under execution against Walter Hurt, the levy being made upon January 11, 1897, and sale March 12, 1897; the levy was made long after the date of the release of the deed of trust held by Hurt against the property, and long after the conveyance to respondents, and appellants acquired no interest under said sale. But conceding, for the sake of argument, that appellants by said sale did acquire an equitable interest in the property, an equitable title would not sustain ejectment. Clay v. Mayr, 144 Mo. 376; Kingman v. Sievers, 143 Mo. 519; Robinson v. Claggett, 149 Mo. 153.



This is an action in ejectment to recover an undivided half interest in lots 22, 23 and 24, being the east forty feet of said lots, in block 19, of the original town of Moberly, in Randolph county.

The petition is in the usual form, and lays the ouster as of March 18, 1902. The answer of the defendants Thackston and Epping is a general denial, with a special plea that they are the tenants in possession, of John N. and S. C. Hamilton, who claim to be and whom they believe to be the owners of the land. On their own motion said John N. and S. C. Hamilton were made parties defendant, and filed an answer, which denies that the plaintiffs are entitled to the land sued for, and then pleads specially that the defendants purchased the land on May 15, 1895, from Josephine Hurt, bona fide, for a valuable consideration, and without notice of the claim of the plaintiffs; that said Josephine Hurt was the then owner of the premises in fee, and conveyed the same to them by a general warranty deed, and that they took the peaceable and undisputed possession of the premises on said date and have had the continuous possession thereof ever since. The case is here upon a certificate of the judgment, and the abstract of the record sets out that the remainder of the Hamiltons' answer is omitted, because "it consists entirely of a second count in equity asking for an order restraining plaintiffs from bringing further suits respecting the property in controversy, was dismissed by the court below, and pertains to no question presented for decision here."

The reply is a general denial.

The plaintiffs say that the court and parties treated the case in the trial court below as a case in equity. It was tried by the court, without the aid of a jury, no instructions were asked or given and the court entered a judgment upon "the issues in the action at law in ejectment for defendants and doth dismiss the second count in the answer of defendants, John N. and S. C. Hamilton, asking for equitable relief."

After proper steps the plaintiffs appealed.

The case made is this:

J. W. Hurt died intestate, at a date not shown in the abstract of the record, seized of the following property: the east forty feet of lots 22, 23 and 24 in the town of Moberly (the land here involved), lots 1, 2, 3, 5, and 6 of H. M. Porter's addition, and some personal property, not specified in the abstract of the record. He left a widow, Josephine Hurt, a son, Walter Hurt, born of his marriage with said Josephine, and two children, Edward Hurt and Elizabeth Tillottson, born of his prior marriage. On May 24, 1892, the widow, Josephine, duly elected to take a child's share in lieu of dower.

A short while after his death the widow and children made a voluntary partition of the property, whereby, the son by the first marriage, Edward Hurt, got one-half of the land here involved, and the widow Josephine got the other half. The daughter by the first marriage, Elizabeth Tillottson, got "some notes and a small piece of property on the east side, a dwelling house." And Walter Hurt, the son by the second marriage, "got some little thing . . . but not much."

On June 1, 1902, Walter Hurt and his then wife Eunice, the plaintiff herein, executed and delivered a...

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