Bruce v. Vogel

• Decision Date: 31 March 1866
• Citation: 38 Mo. 100
• Parties: GEORGE BRUCE, Plaintiff in Error, v. JOHN C. VOGEL, Defendant in Error.
• Court: Missouri Supreme Court

38 Mo. 100

GEORGE BRUCE, Plaintiff in Error,

v.JOHN C. VOGEL, Defendant in Error.

Supreme Court of Missouri.

March Term, 1866.

Error to St. Louis Circuit Court.

C. F. Burnes, for plaintiff in error.

I. The liens of judgment in St. Louis county have priority only according to the time of their respective entries in the book of abstracts of judgments kept in the office of the clerk of the Land Court--R. C. 1855, p. 1594, § 13.

II. The four judgments rendered on the 2d day of October, 1860, abstracted in the office of the clerk of the Land Court on the 6th day of the same month, must have equality of lien. There can be no division of a day.

III. The judgment in favor of Garesche was rendered and filed in the office of the clerk of the Land Court prior to either of the others mentioned in the record, and being a prior lien, is not entitled to any of the money realized by the sale under the junior judgment, but the purchaser takes the real estate subject to the lien of this prior judgment.

Krum & Decker, for defendants in error.

I. There is no final determination of the rights of the parties in this case. The writ of error will have to be dismissed--Adams v. Trigg, 25 Mo. 190.

II. The Supreme Court will not review the action of the Circuit Court, where the Circuit Court refused to entertain a motion against the sheriff-Ladew v. Spalding, 17 Mo. 159.

III. The Circuit Court properly overruled Bruce's motion.

a. The sheriff ought not to be subjected to the annoyance and harassment of a litigation, without being summoned as other defendants.

b. Bruce was not entitled to the proceeds of the sale under the Brown execution, nor any part thereof. The amount realized was not sufficient to cover the Brown execution, under which the levy and sale had been made. No levy was made under Bruce's execution.

At common law, neither judgments nor executions were liens on the land of the judgment debtor; they became so by statute (Westm. 2, 13 Edw. I. C. 18), but were limited to those lands of which defendant, or some one to his use, was seized (in possession)--3 Bl. Com. 418; Tidd Prac. 850, and cases there cited.

By our statute (1855) judgments are liens on the “real estate” (R. C. 1855, p. 902,) and inter sese all of equal force rendered at the same term. But by act applicable to St. Louis, “no such judgment shall be a lien until filed in Land Court office, in abstract book; and the liens of all judgments entered in said book, as provided for in this act, shall have priority according to the period of time of their respective entries in said book.”

The part of the statute above quoted is an amendment passed by the Legislature after the case of Dunscomb v. Maddox, 21 Mo. 144, and intended to remedy or change the law as decided by that case. So that there should be a priority in favor of the earliest judgment entered on the abstract--Laws 1852-3, p. 90, § 14, interpreted by Dunscomb v. Maddox, 21 Mo. 144; R. C. 1855, p. 1594, § 13.

The proceeds must be applied to the execution under which the levy and sale were made. The statute gives a lien to a judgment creditor, but he must prosecute this lien; and he may lose it by neglect, or lose his preference by the superior diligence of another execution creditor.

Here Bruce had rested on nulla bona returns since 1861--Smith v. Lind, 29 Ills. 28, and cases cited. Brown levies on an equitable interest in land, of which Ladew is not in possession, and of which he has not the legal title. The title is in one Wood. A purchaser from Wood in good faith would be protected against judgment creditors of Ladew, notwith standing that judgments against Ladew are liens: so will a party who, by superior diligence, hunts up an equitable interest and levies upon it, be preferred to one who lies idle upon a mere lien.

If the proceeds go to any other execution than Brown's, then it is to Garesche's execution, also in the sheriff's hands; the judgment being eldest in time in the Common Pleas, and first abstracted.

WAGNER, Judge, delivered the opinion of the court.

This is a writ of error, prosecuted from an order overruling a motion made by plaintiff, to require the sheriff of St. Louis county to pay over certain moneys in his hands, upon an execution in plaintiff's favor.

The record discloses the following facts: P. B. Garesche obtained judgment against Augustus P. Ladew, in the Court of Common Pleas, on the 1st day of October, 1860, which judgment was abstracted in the Land Court on the 5th day of October, 1860. On the 2d day of October, 1860, four judgments were rendered in the Circuit Court against Ladew; one in favor of plaintiff; one in favor of James Woods and others; one in favor of Lucien Hart, and the other in favor of James R. Brown, all of which were filed and abstracted in the office of the clerk of the Land Court on the 6th day of October, 1860.

By the act establishing the St. Louis Land Court, no judgment rendered by any court in St. Louis county operated as a lien on real estate in said county until an abstract of the judgment was entered in a book kept by the clerk of the Land Court; and the liens of all judgments entered in the book with the clerk, according to the act, had priority according to the period of time of their respective entries. Ladew, the judgment debtor, was apparently insolvent, as executions were issued on the foregoing judgments shortly after their rendition, and returned by the sheriff nulla bona.

Garesche and Brown assigned their judgments to one Prince, and Prince's attorney caused an execution to be issued on the Brown judgment on the 18th day of July, 1863, with directions to the sheriff to levy on and sell the right, title and interest of Ladew in a certain piece of real estate in the city of St. Louis.

The sheriff made the levy and advertised the property for sale on the 21st day of July, and sold the same on the 14th day of August ensuing, for the sum of $1,175, not sufficient to pay off the execution.

Bruce, the plaintiff, had execution issued and placed in the hands of the sheriff on the 23d day of July, and...