Chilton v. Cady

• Decision Date: 06 April 1923
• Docket Number: No. 23242.,23242.
• Citation: 298 Mo. 101,250 S.W. 403
• Parties: CHILTON v. CADY. CADY v. RANDELL.
• Court: Missouri Supreme Court

250 S.W. 403

298 Mo. 101

CHILTON v. CADY.

CADY v. RANDELL.

No. 23242.

Supreme Court of Missouri, Division No. 1.

April 6, 1923.

Appeal from Circuit Court, Greene County; Orin Patterson, Judge.

Action of ejectment by J. W. Chilton against E. S. Cady, and a suit by E. S. Cady against C. L. V. Rendell which cases were consolidated and tried as one. Judgment for Cady in both cases, and Randell and Chilton appeal. Affirmed.

W. Orr, of Springfield, for appellants.

SMALL, C.

I. Appeal from the circuit court of Greene county. The above two cases were consolidated and tried as one case. The case of Chilton v. Cady is a suit in ejectment, and Cady v. Randell is a suit in equity to set aside a sheriff's sale and judgment to quiet title. The land involved is 320 acres in Shannon county, where the suits were originally brought.

The answer in the ejectment suit is substantially the same as the petition in equity, and both cases present the same issues. The amended petition of Cady v. Randell was filed February 16, 1920, in the circuit court of Shannon county. The petition of Chilton v. Cady was filed February 4, 1920, in said county. Change of venue was taken by agreement of parties in both cases to the circuit court of Greene county.

The petition in the case of Cady v. Randell alleged, in substance, that plaintiff was the owner and in possession of said land since the 19th of November, 1917, and that defendant, Randell, claiming some interest therein, on the 28th of June, 1919, Sled suit in the circuit court of Shannon county, Mo., against defendant and various parties to quiet title to said land, and, in the petition and affidavit attached thereto, stated that plaintiff was a nonresident of the state of Missouri, which was not true, but absolutely false, for in fact, the plaintiff was at the institution of said suit a resident of said Shannon county, Mo., and resided on the land in controversy, and has since resided there; that said action to quiet title was brought by said Randell to defraud the plaintiff, and, in furtherance of such design, he caused the notice of publication to be published in the Winona, Democrat, an obscure newspaper published in said county, knowing that plaintiff would not see it; that, at the September term, 1919, of said court, defendant, Randell, took judgment against the plaintiff In said suit to quiet title, whereby he attempted to divest plaintiff of all right and title to said land, and vest the same in said Randell; that plaintiff had then, and has now, a meritorious defense to said action; that plaintiff prays that said judgment divesting his title to said land be set aside and for naught held, and for such other and proper relief as to the court may seem just.

Plaintiff for another cause of action says that, at the January term, 1919, of said Shannon county circuit court, said Randell, representing the attorney for one Hinkle, became the purchaser of the land by virtue of a special execution, issued on a pretended judgment rendered at the September term, 1918, of said court against the plaintiff, and in favor of one S. J. Hinkle, based upon a foreign judgment, when the said Randell and his attorney well knew, at the time, that said foreign judgment had been fully paid, and plaintiff owed said Hinkle nothing by virtue thereof; that said pretended purchase by said Randell of said lands at the January term, 1919, of said court, was with full knowledge of all the conditions above referred to, and was done for the purpose of defrauding plaintiff and procuring title to his land without any consideration; that at said sale said Randell, for himself, and the attorney for Hinkle, bid off 240 acres thereof in controversy, of the value of $3,500, for the inadequate price of $77; wherefore, plaintiff prays that said sheriff's deed to said Randell be set aside and for naught held, and for such other and further relief as to the court may seem proper. This petition was duly verified by the plaintiff.

The petition in the case of Chilton v. Cady was an ordinary petition in ejectment. The answer of Cady thereto was, in substance, the same as his petition in the suit in equity brought by him against Randell, with the further statement that Chilton was merely the agent of Randell, and had full knowledge of all the matters affecting the title of said Randell at the time Chilton procured his deed from Randell, at which time the defendant, Cady, was also in the actual possession of the land. The prayer of the answer was that Chilton's title be divested, and that title to said land be vested in the defendant, Cady.

The answer of Randell in Cady's suit against him, and the reply of Chilton in his suit in ejectment against Cady, tendered issue and set up the purchase at the sheriff's sale and the judgment to quiet title, as a bar to Cady's interest in the land.

The Evidence.

The files of the attachment suit were introduced in evidence. The petition, filed July 11, 1918, stated Hinkle obtained judgment in Lincoln county, Colo., on June 20, 1918, against Cady for $1,066, together with costs and attorneys' fees in the sum of $200, 65, making a total of $1,266.65, and interest, "which had not been paid, and for which $1,274.65," plaintiff, Hinkle, asked judgment, The writ of attachment issued and levied same day was for $1,274.65. Service was by publication, and judgment by default was rendered September 10, 1918, at the regular September term of said court, for $1,287.40, being the total amount, including attorneys' fees and interest of the Colorado judgment, It was further adjudged that the clerk make out and deliver to the sheriff a certified copy "of this order and decree herein, together with a special execution directing the sheriff to forthwith levy upon defendant's (Cady's) right in said land," and that the same be by him sold at the next regular term of the court for the purpose of satisfying said judgment and costs. The sheriff's sale was made January 14, 1919, and the sheriff's deed recited $283.76 as the amount bid by Randell. The sheriff's deed to Randell was based upon the judgment and order of sale In the attachment case.

There was no credit upon the order of sale of any payment, and the advertisement presumably stated that the land would be sold for the amount of the judgment and costs. At the sale, however, the sheriff announced that all of the judgment and special execution had been paid except $283.76, for which he would proceed to, and did, sell the property.

The petition in Randell v. Cady, the suit to quiet title, was filed June 26, 1919. The service was by publication, based upon an affidavit by Randell that defendant, Cady, was a nonresident of the state. Judgment was rendered by default therein on September 12th, being the September term, 1919, of said court. It was stipulated that Cady was the common source of title. Randell's deed to Chilton was a warranty deed dated January 26, 1920, and recorded January 28, 1920.

Cady testified at the trial:

That there was a judgment against him in Colorado in favor of Hinkle, rendered in June 1918, where he, at the time, resided. That it was for $1,266.65; that he paid it all. He introduced a certificate of the clerk of the Colorado court, duly certified under the act of Congress, showing that said judgment was satisfied "as appears from the records in said court." The certificate of the clerk was dated December 14, 1918. That on June 26, 1919, he was living upon the land in Shannon county in question, and living there when the notice of publication in the Randell suit to quiet title wee published. He had no personal knowledge of the pendency of this suit to quiet title. He first learned of said suit, and of the judgment rendered therein, in February, 1920. He lived on the land in January, 1920, when the deed from Randell to Chilton was executed. At the time it was sold by the sheriff in the attachment proceedings, the land was worth about $3,500. It was in different tracts; 160 acres was about three-quarters of a mile from the other in another section. He first learned of the judgment in the Hinkle attachment suit in Shannon county from a letter from Mr. Beeler, attorney for. Hinkle. Part of the land was farming land; it was divided into two separate tracts

The letter from Mr. Beeler was introduced. It had no date. It was from Mr. Beeler, while in the army at Camp Pike, in Arkansas. He was Hinkle's Colorado attorney.

Beeler stated that S. A. Cunningham, of Eminence, Mo., who assisted him as attorney for Hinkle, advised him that Missouri land would be sold about January 1st, unless the judgment was satisfied; that he understood the land was worth more than the judgment; that the amount of the judgment was for $1,066.65, and costs amounting to over $200; he did not know what the costs in Missouri were; that he wrote to notify him so that he could save the land.

Cady further testified that, as soon as he got this letter from Beeler, he had his lawyer, Mr. Reid, write to Mr. Cunningham that the judgment had been paid.

John T. Bay, sheriff of Shannon county, testified:

That he sold the land under special execution in the attachment proceedings on January 14, 1919, to C. L. D. Randell. Cunningham was elected to the Senate. He wanted Randell's attention called to this sale, if it was not paid off on or before the day of sale. Cunningham said there was $283.76 still unpaid on the judgment. The judgment had been settled somewhere, Colorado, perhaps, and there was a balance of attorneys' fees, $206.65. The execution was for the full amount of the judgment. Randell's bid was $283.76. He paid witness $77.11; he was to settle the balance with Cunningham. "I returned the execution this way: `I therefore return the execution not satisfied' —to the circuit clerk, January 14, 1919. I announced at the sale that there was only $283 against the land. Nobody bid but Randell offered the land in 40-acre tracts, clear through, and, no bids...