Carr v. Lewis Coal Co.

• Decision Date: 27 May 1884
• Citation: 15 Mo.App. 551
• Parties: JAMES CARR, Respondent, v. LEWIS COAL COMPANY, Appellant.
• Court: Missouri Court of Appeals

15 Mo.App. 551

JAMES CARR, Respondent,

v.LEWIS COAL COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

May 27, 1884.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Reversed and remanded.

GIVEN CAMPBELL and JOSEPH DICKSON, for the appellant: In the absence of actual notice of the pendency of the suit the lis pendens did not affect the appellant with notice.-- Murray v. Ballou, 1 Johns. Ch. 566; Murray v. Lylburn, 2 Johns. 441; Warner v. Marcy, 97 U. S. 106. The doctrine of lis pendens does not apply to personalty.-- McLaurine v. Monroe, 30 Mo. 464; Bank v. Smith, 7 Wall. 646; Aldrich v. Insurance Co., 8 Wall. 491. There could be no judgment in personam against the appellant.

H. D. WOOD, with whom is JAMES TAUSSIG, for the respondent: The doctrine of lis pendens applies to every description of property, whether real or personal, except negotiable notes not past due, and bonds, where the specific thing can be pointed out, so as to warn the whole world that they meddle with it at their peril. This doctrine of lis pendens is not based upon presumptions of notice, but upon a public policy, imperatively demanded to give effect to the proceedings of courts of justice. “It may be conceded, at this day, lis pendens applies with equal force to controversies in regard to personal property.”-- Freem. on Judg., par. 191-194; Buford v. N. L. Packet Co., 3 Mo. App. 159; Boling v. Carter, 9 Ala. 921; Lewis v. Mew, 1 Strobh. Eq. 182; Scott v. McMillen, 1 Litt. 309; Edgell v. Haywood, 3 Atk. *357; Watson v. Wilson, 2 Dana (Ky.), 408; Thones v. Southard, 2 Dana, 480; Scudder v. Van Amburg, 4 Edw. (Ky.), 29; Newman v. Chapman, 2 Rand. 93; McCutchin v. Miller, 31 Miss. 88; Tyler v. Hyde, 2 Blatchf. 308; Tabb v. Williams, 4 Jones Eq. 352; Fletcher v. Farrell, 9 Dana, 376; Diamond v. Lawrence County, 37 Pa. St. 353; Kellogg v. Fancher, 23 Wis. 1; McIlwrath v. Hollander, 73 Mo. 112; Wills v. Whitmore, 9 Baxt. 198; Dovey's Appeal, 97 Pa. St. 153; Kinderling v. Hartley, 1 McCrary, 136; McCauley v. Rogers, 10 Bradf. 562.

BAKEWELL, J., delivered the opinion of the court.

This is a proceeding by a judgment creditor, in the nature of a supplemental bill to reach and subject to the satisfaction of the judgment a steam tug-boat sold pendente lite.

The cause was submitted upon the pleadings and an agreed statement of facts.

It appears that, in 1877, plaintiff obtained judgment in the St. Louis circuit court against one Thomas Parker, Sr., for $2,655, upon a note. The execution was levied upon the tug in controversy here, called the Alice Parker, as the property of Thomas Parker, Sr. Thomas Parker, Jr., interposed a claim to the boat, and plaintiff not being able to give an indemnification bond to the sheriff, the levy was released. Plaintiff filed his bill in the St. Louis circuit court against the Parkers, father and son, to set aside a conveyance of the tug from the father to the son, and to subject the tug to the payment of his judgment. This case will be found reported in 10 Missouri Appeals, at page 364, under the style of Carr v. Parker. It clearly appeared that the transfer from the father to the son was a bald and impudent fraud; and plaintiff obtained his decree on the 18th of February, 1880, that Thomas Parker, Jr., deliver the tug to the sheriff, who was directed to sell the boat and apply the proceeds to the payment of the judgment and the costs, etc. The sheriff made return to this writ, that Parker, Jr., refused to deliver the tug, saying that she was not in his possession or under his control. No bond had been given in this proceeding, and, though a restraining order was asked to enjoin the Parkers from disposing of the tug, none was granted until the final decree. Before this final decree, before the hearing, but after the commencement of this suit and service of summons, that is to say, on the 8th of January, 1880, the Lewis Coal Company, having no actual notice of these proceedings, bought the tug of Parker, Jr., for $5,800, her full value, and immediately took possession of her.

It is admitted that defendant is a corporation; but whether a domestic or foreign corporation does not appear, nor where defendants' place of business is. It does not appear where the tug was when sold to defendant, nor where she has been at any time since.

The court found the issues for plaintiff, and entered a decree that plaintiff recover his costs of defendant; that the total amount of the judgment and costs in cases No. 47,734 and No. 49,832 (that is the original suit against Parker, Sr., and the creditor's bill against father and son), are a lien on the interest of the Lewis Coal Company in the tug boat Alice Parker, on the 6th of September, 1880; that the Lewis Coal Company forthwith deliver the boat to the sheriff; that the sheriff forthwith proceed to sell the same, for cash, in the manner provided for execution sales; that out of the proceeds, the sheriff pay the costs of this suit, and the costs of the cases, 47,734 and 49,832, and then pay to plaintiff his judgment in 47,734 with interest, and pay the remainder to the Lewis Coal Company. “And in the event said tug-boat be not delivered to said sheriff within five days after demand by him therefor of defendant pursuant to this decree, then defendant shall pay to said plaintiff the said amount of said judgment with interest and costs, in said cases numbered 43,743 and 49,832 of this court hereinbefore adjudged a lien against said tug-boat, and said sheriff shall thereupon proceed forthwith to collect the said amount thereof, as well as the costs of this suit, of said defendant, by levy upon the goods, chattels, and real estate of said defendant or otherwise, in conformity to law, in like manner as upon general fieri facias; and that plaintiff have execution and such other final process as may be necessary and proper to carry into full effect this decree.”

What personal property is subject to the doctrine of lis pendens, does not seem to be yet definitely settled by any line of judicial decisions. The matter may be said to be res integra in Missouri. Long ago, in McLaurine v. Monroe (30 Mo. 369), Judge Scott remarked: “We said the lis pendens in Tennessee “might' be notice to a purchaser of the slaves of the equity of complainants. The law in relation to the question whether movable personal property is subject to the doctrine of lis pendens does not appear to be settled. There is certainly a leaning in the courts against its application to such property. As the parties have not referred to this question in their briefs, we will hazard no opinion in regard to it.” And he cites the well known cases in 22 Alabama and 2 Johnson's Chancery, to which I shall hereafter refer.

It is well settled that there is at least one species of personal property-- negotiable paper--to which the doctrine does not apply. But this exemption from the operation of the rule, arises from a peculiar quality which the law, for wise reasons, attaches to commercial paper in the hands of a bona fide holder for value before maturity. To apply the doctrine of lis pendens to such securities, would be to destroy one of the essential characteristics of negotiable paper ( Keiffer v. Ehler, 18 Pa. St. 388), which unlike other property, as is remarked by Judge Laurie in the case just cited, carries its whole evidence of title upon its face. County of Warren v. Marcey, 97 U. S. 96; Winston v. Westfeldt, 22 Ala. 760.

In Murray v. Lylburn (2 Johns. Ch. 441), Chancellor Kent doubts whether the doctrine ought to be carried so far as to affect sales of movable property, such as horses, cattle, and grain, and Judge Bradley in County of Warren v. Marcey ( supra), says that the doctrine is applicable to personalty, with the two exceptions of negotiable paper, and articles of ordinary commerce sold in the usual way. In New Hampshire, however, the courts refuse to apply the doctrine to personalty ( Chase v. Searles, 54 N. H. 511); whilst in Mississippi, on the other hand, it is said that the doctrine at this day applies with equal force to contracts in regard to personalty and those concerning real estate. McCutcheon v. Miller, 31 Miss. 65. In Pennsylvania the doctrine is applied to non-negotiable securities. Deaum v. Lawson Co., 37 Pa. St. 533.

So far as the reasons on which the rule itself is based go, they seem to apply with equal force to personal property and real estate. The doctrine is an equitable one; but in law the same effect is produced by the rule that the purchaser takes only the title of his vendor. Every man is supposed to be attentive to what passes...