Cole Cnty. v. Angney

• Decision Date: 31 July 1848
• Citation: 12 Mo. 132
• Parties: COLE COUNTY AND E. BARCROFT v. ANGNEY, PRICE & DAVISON.
• Court: Missouri Supreme Court

12 Mo. 132

COLE COUNTY AND E. BARCROFT

v.ANGNEY, PRICE & DAVISON.

Supreme Court of Missouri.

July Term, 1848.

1. CHANCERY—PRACTICE—DEMURRER.—Where a demurrer to a bill in chancery is overruled the court cannot enter up a decree in conformity with the facts stated in the bill, but should compel the defendant to answer.

2. SAME—SECURITY.—A. purchased a tract of land from C—executed his note for the purchase-money with B. as surety.- By the terms of sale C. retained a lien to secure the purchase-money; A. afterwards became insolvent and the land was sold under execution and purchased by D.; C. obtained judgment on the note against A. and B., and levied his execution upon the land; D. filed his bill and prayed that C. be restrained from selling the land until the property of B., the surety, be exhausted—Held, 1st. That C. had a right to make his debt off the land in the first instance. 2nd. That if the debt be made off the surety a court of equity would substitute him in the place of the creditor, and give him every preference and lien which the creditor had. Quare?—Has a court of chancery jurisdiction to arrest, by injunction, the sale of land levied on under an execution issued from a court of law, upon the sole ground that the land does not belong to the defendant in the execution or has passed from him ?

APPEAL FROM COLE CIRCUIT COURT.

KOWNSLAR, for Appellants. The Circuit Court ought to have sustained the defendants' demurrer, because no exhibits were filed by the complainants with their bill, and for the additional reason that the bill is multifarious, the interests of Angney, Price & Davison being entirely distinct and separate and wholly disconnected. The county of Cole had a prior lien on the property of Wells by virtue of the 15th section of the 6th article of an act to provide for the organization, &c., of Common Schools, approved 9th February, 1839, Bess, acts, 147. That section is as follows, to-wit: In case any officer or other person indebted or accountable for any money or property due or belonging to the State or any township or district on account of any school fund or income thereof, shall die, become insolvent or bankrupt, or shall make a general assignment of his property or effects, the debt or amount so due or to be accounted for shall have priority over other debts and shall be first paid. Under this law the court ought to have sustained the demurrer, for the bill does not show that Cordell had any lien on the land of Wells at the time this legislative lien was created, nor does it show that Wells had any property—it only shows that Barcroft, the security of Wells, had property. The bill is manifestly informal and insufficient in not setting out the dates of the judgments, executions and deeds referred to in said bill—and in not making exhibits of them. The Circuit Court had no right by the decree, as it did, to compel the county of Cole to resort to one of several funds for the payment of its debt. The county had the undoubted right to resort to one or more, at its own pleasure.

E. L. EDWARDS, for Appellees. 1st, The 15th section of the last article of the School law is unconstitutional, being in derogation of the rights of the citizens of this State. The right to priority is an incident of sovereignty, and cannot be granted to one class of citizens to the injury of another. 2nd. Although said law may be constitutional and valid, still it devolves on the county to show that Wells was insolvent at the time of rendering judgment in favor of said county against Wells & Barcroft, and she cannot claim the benefit of said law, until a case is made out by her showing that she is entitled to the benefit of its provisions. 3rd. There is a difference between a priority and a lien. A lien attaches and holds from the time of its due execution, &c. Priority does not attach until the happening of some one of the contingencies mentioned in the law giving such priority. 4th. The insolvency of a debtor contemplated by the act, means a legal insolvency, and not a mere inability to pay his debts, and his insolvency must be established before priority attaches. To sustain this view of the case, the appellees rely upon the following authorities : 1 Kent's Com. 143; 2 Cranch, 358 ; 3 Cranch, 73. In 2 Wheat. 399, this question is fully discussed. See also Brent v. Bank of Washington, 10 Peters, 596.

NAPTON, J.

This was a bill in chancery, filed by Angney, Price & Davison to enjoin further proceedings upon an execution issued in favor of Colo County against Wells & Barcroft, and levied on certain lands claimed by the complainants. The bill stated, that on the 29th June, 1842, they became the purchasers of certain lots and land, lying in the city of Jefferson, and county of Cole, at public sale made by the sheriff under sundry executions issued against John W. Wells and levied on said land and lots, and that they received deeds from the sheriff, duly executed and acknowledged. The bill further states, that in 1838, John W. Wells became the purchaser of a portion of the 16th section in township 45 and range 13, and gave his bond to the county of Cole, with Elias Barcroft as security, for the payment of the purchase-money ; that the county of Cole obtained a judgment against said Wells & Barcroft in 1842 (at the June term), and that an execution was issued and levied upon the land above stated to have been purchased by the complainants ; that Barcroft has sufficient unincumbered property to satisfy the said execution, but that Cole county claims a priority of lien on Wells' land by virtue of the 15th section of the 6th article of the act regulating Common Schools, approved February 9th, 1839. An injunction is therefore prayed to stay proceedings, until all...