Carr v. Lewis Coal Co.

• Decision Date: 18 June 1888
• Citation: 8 S.W. 907,96 Mo. 149
• Parties: Carr, Appellant, v. The Lewis Coal Company
• Court: Missouri Supreme Court

8 S.W. 907

96 Mo. 149

Carr, Appellant, v. The Lewis Coal Company

Supreme Court of Missouri

June 18, 1888

Appeal from St. Louis Court of Appeals.

Affirmed.

H. D Wood, with James Taussig, for appellant.

(1) A purchase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice of the suit, affects the purchaser in the same manner as if he had notice; and he will be bound by the decree in the suit. The alienee comes before the court in exactly the same plight as the former party. Story Eq Plead., pars. 353, 156, 342, 343; Milford & Ty. Plead. and Pr. [Ed. of 1876], 166, 172; 1 Story Eq. Jur. par. 405; Adams Eq. *409; Hoxie v. Carr, 1 Sumner, 173; Turner v. Bobb, 60 Mo. 347, 350; O'Reilly v Nicholson, 45 Mo. 160; Whiteside v. Hazelton, 110 U.S. 296. (2) 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. The 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." McCauley v. Rogers, 10 Brad. 562; Freeman on Judg. [3 Ed.] pars. 191, 192, 193, 194; Buford v. Packet Co., 3 Mo.App. 159; S. C., affirmed, 69 Mo. 611; Bisph. Eq., par. 274; Boling v. Carter, 9 Ala. 921; Lewis v. Mew, 1 Strob. Eq. 182; Scott v. McMillen, 1 Littl. 309; Edgell v. Haywood, 3 Atky. *357; Watson v. Wilson, 2 Dana [Ky.] 480; Thones v. Southard, 2 Dana, 408; Scudder v. Van Amburgh, 4 Edwds. [Ky.] 29; 1 Story Eq., par. 406; 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. (3) The recording acts of the United States simply provide how certain conveyances of vessels shall be registered to make the transfer valid between the parties as to certain third persons. There is no statute which would require us to file a notice of this suit with the collector, and the collector has no power to record such a notice. Furthermore, there is nothing in the agreed case to make necessary any discussion of those statutes. (4) The state statute, requiring the filing of notices of suit in case of equitable actions affecting real estate, does not affect the equitable doctrine of lis pendens in regard to personal property. Nothing short of a direct, positive and prohibitory statute will oust a court of equity of a subject pertaining to its jurisdiction. Thus our partition statutes do not oust the equity jurisdiction of the courts in matters of partition. Sav. Inst. v. Collonious, 63 Mo. 290. See also as to equity jurisdiction: Stewart v. Caldwell, 54 Mo. 536; Pratt v. Clark, 57 Mo. 189. (5) If the situs of the property were material in an action brought against the fraudulent transferee thereof to set aside the conveyance, the presumption of law from the agreed facts is, that the boat was within the jurisdiction of the court. (6) It is immaterial whether the tug was within the jurisdiction of the court. Courts of equity act in personam where the parties are within its jurisdiction, even though the property, whether real or personal, is in another state or nation. Pom. Eq. pars. 135, note 2, 428-1318; Olney v. Eaton, 66 Mo. 563; Briggs v. French, 1 Sumner, 504; Massie v. Watts, 6 Cranch, 157. It is remarkable that the case cited by the court of appeals (Fletcher v. Ferrell, 9 Dana, 372), in support of its proposition adverse to this point, was a case where a purchaser of slaves in Kentucky, pending a suit concerning them in Tennessee, was treated as a pendente lite purchaser. (7) We were entitled to the alternative order that the defendant deliver the tug to the sheriff, or pay the amount of the judgment and costs. (a) When a court of equity acquires jurisdiction, it will proceed to complete justice between the parties, though it consists in awarding damages, and will grant any relief consistent with the issues sustained by the proof. Ames v. Gilmore, 59 Mo. 537; Hamilton v. Hamilton, 59 Mo. 232; Lydick v. Holland, 83 Mo. 707; Savings Inst. v. Collonius, 63 Mo. 290. (b) It is a well-established doctrine in equity that a decree for the amount of the creditor's judgment will be entered against the fraudulent transferee of property, where the value of the property thus transferred equals or exceeds said judgment. Murtha v. Curley, 90 N.Y. 372; Ferguson v. Hillman, 55 Wis. 181.

Given Campbell and Joseph Dickson for respondent.

(1) The court had no jurisdiction over the tug "Alice Parker," and its decree was ineffectual to change its status. (2) In the absence of actual notice of the pendency of the suit of Carr against the two Parkers, the lis pendens did not affect the Lewis Coal Company with such notice as to render its title to the tug subject to the right of plaintiff under the decree rendered in that suit. Arg. Chy. Cas. 151; Sorrell v. Carpenter, 2 P. Wms. 482; Benjamin on Sales [4 Am. Ed.] sec. 513; County v. Marcey, 97 U.S. 106; Durant v. Iowa Co., 1 Woolworth, 69; Laurral v. Monroe, 30 Mo. 464; Wade on Notice, sec. 369. (3) The court had no authority to render a judgment in personam against the Lewis Coal Company. Wade on Notice, sec. 375. The only effect of a lis pendens is to prevent a purchaser from acquiring an interest in the thing in litigation to the prejudice of the adverse party. Marshall v. Shepperd, 23 Kan. 321-326; McCauley v. Rogers, 104 Ill. 581; Havens v. Adams, 8 Allen, 363.

Sherwood, J. Ray, J., absent.

OPINION

Sherwood, J.

In 1877, Carr brought suit in the St. Louis circuit court against Thomas Parker, Sr., upon a note, and recovered judgment. Execution was issued and levied upon the steam tug now in controversy, called the Alice Parker, as the property of Thomas Parker, Sr.; but Thos. Parker, Jr., in whose name the boat was fraudulently registered as owner, claimed the boat, and Carr, not being able to give an indemnification bond to the sheriff, the levy was released. This was in 1878, and the cause was numbered 43,734. In 1879, Carr filed his petition in said court against the Parkers to set aside the conveyance of the father to the son as fraudulent, and was successful, a decree, as prayed, being entered February 18, 1880. This cause was numbered 49,832.

Prior to the entering of this decree, however, and on January 8, 1880, the Lewis Coal Company, having no actual notice of the suit, bought the tug of Thos. Parker, Jr., paid him its full value, fifty-eight hundred dollars, in cash, and immediately took possession of her. Upon the entry of the decree aforesaid, an order was issued directing that defendant Thos. Parker, Jr., deliver the tug Alice Parker to the sheriff, and that upon receiving it, the sheriff sell the tug. The sheriff made return upon this order to the effect that Thos. Parker, Jr., refused to deliver the tug, saying it was not in his possession or under his control. No bond was given in the proceeding, and although in the petition a restraining order was asked to enjoin the Parkers from disposing of the tug, none was granted until final decree. It is admitted that the Lewis Coal Company is a corporation; but whether foreign or domestic, or where its place of business is, or at what place the tug was bought, or where it has been since, or was at the time the decree was entered, nowhere appears.

The present proceeding in the nature of a supplemental bill was instituted to reach and subject to the satisfaction of the judgment aforesaid, the steam tug as having been sold pendente lite; and the Lewis Coal Company was made a party defendant; subsequently a dismissal was entered as to the Parkers. Upon the hearing of this last-named cause, the court found the issues for the plaintiff, and entered a decree against the Lewis Coal Company as follows: "That plaintiff recover his costs of defendant; that the total amount of judgment and costs in cases number 43,734 and number 49,832 (that is the original suit against Parker, Sr and the creditors' bill against father and son) are a lien on the interest of the Lewis Coal Company in the tug-boat Alice Parker, on the sixth 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, 43,734 and 49,832, and then pay to plaintiff his judgment in 43,734 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 43,734 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." This decree was reversed in the court of appeals (15 Mo.App. 551), and the plaintiff has appealed here. The judgment of reversal was based upon two grounds; one as to jurisdiction, and...