Chouteau v. Nuckolls

• Decision Date: 31 March 1855
• Citation: 20 Mo. 442
• Parties: CHOUTEAU Respondent, v. NUCKOLLS, Appellant.
• Court: Missouri Supreme Court

20 Mo. 442

CHOUTEAU Respondent,

v.NUCKOLLS, Appellant.

Supreme Court of Missouri.

March Term, 1855.

1. A judgment rendered in a court of one county, in a cause taken by a second change of venue by consent of parties from another county, though irregular, is not void, and a title acquired under it cannot be impeached in a collateral proceeding.

2. Under the act of congress approved July 4, 1840, the liens of judgments and decrees rendered in the United States circuit and district courts within each state, continue for the same period as the liens of judgments and decrees of the state courts.

3. The pendency of a writ of error in the supreme court of the United State does not affect the duration of the lien of a judgment of the circuit court.

4. Under execution upon a judgment of a state court, real estate was sold to A., being at the time subject to the lien of a judgment of the United States circuit court. After the lien of the latter judgment expired, execution upon it issued, under which the same real estate was sold to B. Held, A. had the better title.

5. Smallness of consideration in a sheriff's deed, of itself, under the circumstances of the case held not sufficient to affect a purchaser from the sheriff's vendee, with notice of fraud in the title of his vendor.

6. It being important to know whether a purchaser for value of real estate had notice of fraud vitiating the title of his vendor, the court trying the case without a jury must explicitly find upon this point.

Appeal from Franklin Circuit Court.

This was an action for the possession of several congressional subdivisions of land in Franklin county, both parties claiming title under Charles Gratiot, the patentee, the plaintiff under an execution sale upon a judgment of the United State Circuit Court for the district of Missouri, and the defendant under an execution sale upon a judgment of the Circuit Court of Warren county.

The judgment of the U. S. Circuit Court against Gratiot was rendered April 29th, 1843, for the sum of $29,126.43, upon which execution issued dated August 25th, 1847, under which the land in controversy was sold by the United States marshal on the 28th of September, 1847, and bid off by the United States of America for the sum of $1,400 who, on the same day, received a deed from the marshal. On the 2d of July, 1851, the land was by the United States conveyed to the plaintiff for a consideration named in the deed, of $1,862.05. The execution, which is made a part of the marshal's deed, recites that it was issued pursuant to an order of the Circuit Court made on the 6th of October, 1846, in conformity with a special mandate of the Supreme Court of the United States.

The judgment of the Warren Circuit Court was rendered April 22, 1844, for costs in an ejectment suit begun by Gratiot in Franklin county, taken by change of venue to Gasconade county, and thence by consent of parties to Warren county, where the plaintiff was non-suited by reason of his failure to appear. Execution for the costs was issued against Gratiot, dated September 10th, 1844, and directed to the sheriff of Franklin county, under which the land in controversy, with other land, was sold April 21st, 1845, and James C. Robertson became the purchaser of the whole at the price of $3.25. He received from the sheriff a deed dated April 23d, 1845, in which the price bid was named as the consideration. On the 12th of May, 1852, Robertson's administrator, after a sale according to law, conveyed the land sued for, with more, to John Q. Dickinson, for a consideration named in the deed of $86.95, who, on the 20th of November following, conveyed an undivided half to the defendant, Nuckolls, for a consideration named in the deed of $82.20.

The plaintiff produced a witness who stated that, at the time of the sheriff's sale to Robertson, he was living upon the Gratiot claim and wished to buy one forty acre tract; that he inquired of the sheriff and Robertson as to the day upon which the sale would take place; that he went to town on the day named by them, but found that the sale had taken place the day before. Another witness stated that, as he was trying, three or four days before the sale, with the assistance of his brother, to read an advertisement of the sale posted up at Walker's mill, Robertson came up and tore it down, saying it was of no further use, and putting up some other paper in its place, the purport of which witness did not know, as he could not read. The same witness attended the sale, with a view to buy a tract adjoining the one upon which he lived. He asked the sheriff to notify him when the tract he wanted was put up. The sheriff replied that he was selling it in larger parcels than witness wanted, and besides, that he would be buying a law suit, as there was a judgment of the United States Court which was a lien upon the land. Witness recollected this fact when his attention was called to it, and did not bid on the land.

There was evidence, (which was excepted to by the defendant,) that the plaintiff attended the sale by Robertson's administrator, and gave public notice that the title was in him; but the witness did not know whether Dickinson was then in hearing or not.

Upon these facts, the Circuit Court, trying the case without a jury, declared the law to be that the sheriff's deed to Robertson was fraudulent and void, and that it exhibited upon its face evidence of fraud which imparted notice to the defendant, and that the plaintiff's was the better title. The defendant appealed.

M. Frissell, for appellant.

I. If plaintiff relied upon the fact that the deed from the sheriff to Robertson was fraudulent, he should have instituted a suit to set aside that deed.

II. Smallness of consideration in a deed has never of itself been considered sufficient...