Carr v. Cates
| Decision Date | 12 November 1888 |
| Parties | Carr et al., Appellants, v. Cates et al |
| Court | Missouri Supreme Court |
Appeal from Barry Circuit Court. -- Hon. W. F. Geiger, Judge.
Affirmed.
Norman Gibbs and John W. Wellshear for appellants.
(1) The only restitution to which John F. and Delila A. Cates defendants in Green v. Cates, 73 Mo. 115, were entitled upon the reversal of the judgment was of so much of the land in controversy in that suit as still remained, at the date of reversal, in the possession of Nancy M Green. Gott v. Powell, 41 Mo. 416. (2) It is settled beyond controversy that title acquired by virtue of a sale under an erroneous judgment or decree is good and valid although the judgment or decree should afterwards be reversed, provided there is no stay of execution and no supersedeas at the time such sale is made. Shields v. Powers, 29 Mo. 315; 10 Pet. 473.
George Hubbert for respondents.
This suit is by ejectment to recover possession of the northeast quarter of the southeast quarter of section 35, of township 24, of range 28, in Barry county, in which defendants recovered judgment and plaintiffs appealed.
The following facts stand admitted on the record, viz.: That defendants as husband and wife were the owners and in possession of the premises in dispute in right of defendant Delila A. Cates; that one Nancy M. Selvidge, who afterwards intermarried with one John Green, brought an equitable action in the circuit court of Barry county Missouri, for the purpose of charging defendants as trustees of said title for her use and obtained a decree vesting the title to said premises in her, the said Nancy M. Selridge; that the said court, on October 14, 1876, entered in that suit a final judgment and decree in favor of said Nancy M. Selridge, and directed that she be placed in possession of said premises, from which said decree and judgment defendants duly appealed to the supreme court of this state at the same term and day at which their motion for a new trial was overruled, to-wit, at the April term, A. D., 1877, as appeared of the record of said circuit court; that no appeal bond was given and no supersedeas granted; that at the hearing of said cause in the said supreme court at its October term, 1880, and on the twenty-third day of February, 1880, the said supreme court by its judgment duly entered of its record against said Nancy M. Green and husband John Green, reversed and annulled the aforesaid judgment and decree of said circuit court and adjudged that the same should be for naught held and esteemed, and that defendants (appellants there) should be restored to all things which they had lost by reason of said judgment so reversed and annulled as aforesaid; that afterwards, to-wit, on the fourteenth day of March, 1881, the said circuit court, upon defendants filing therein a duly certified copy of the said judgment of reversal, ordered that a writ of restitution issue upon the said judgment of reversal for the restitution of said premises to defendants, for the reason and on account of the fact that preceding the said appeal, the said judgment of the circuit court had been executed, and that in pursuance of a writ of execution issued thereon, she and her said husband had possession of said premises; that such writ of restitution was duly issued out of the office of the clerk of the said circuit court, by virtue of which defendants were by the sheriff of said Barry county restored to the possession of said premises on or about the twenty-eighth day of March, A. D., 1881, since which date they have continued in possession thereof; that during the pendency of said cause in the said supreme court upon said appeal, and on or about the sixteenth day of November, 1878, the plaintiffs, with full knowledge of the pending of said cause and appeal, and that said Nancy M. and John Green's title depended upon the said decree, procured from one John W. Wellshear,...
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