Crow v. Drace

• Decision Date: 31 October 1875
• Citation: 61 Mo. 225
• Parties: JOSEPH CROW, Defendant in Error, v. THOMAS DRACE, Plaintiff in Error.
• Court: Missouri Supreme Court

61 Mo. 225

JOSEPH CROW, Defendant in Error,

v.THOMAS DRACE, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1875.

Error to Franklin County Circuit Court.

J. C. Kiskaddon, for Plaintiff in Error.

I. Defendant purchased at the sheriff's sale without notice either actual or constructive, of any claims of the partnership, and is an innocent purchaser, and will hold against the firm or its creditors. (Pars. Part., 377; Perry Trusts, § 218, and note; Buchan vs. Sumner, 2 Barb. Chy., 198; Tillinghast vs. Champlin, 4. R. I., 209, and cases cited.)

II. The levy of a writ of attachment upon land creates a lien from the moment of the levy and a sale under execution issued upon the judgment relates back to the time of the levy, and passes the title to the purchaser unaffected by any incumbrances created or conveyances made subsequently to such levy. (Lackey vs. Seibert, 23 Mo., 85, and cases cited.)

Henry Flanagan, for Defendant in Error.

If Drace acquired any interest in the real estate by virtue of his attachment against McCallister, that interest was subject to the superior claim of the partnership creditors. (Davis vs. Ownsby, 14 Mo., 170.)

HOUGH, Judge, delivered the opinion of the court.

This is a bill in equity to cancel a deed made by the sheriff of Franklin county to the defendant (Drace) for a lot in the town of Sullivan, in said county, which deed the plaintiff alleges is a cloud upon his title; and also to enjoin the defendant from prosecuting an action of ejectment against the plaintiff under said deed.

The petition alleges in substance, that on the 29th day of October, 1868, J. C. McCallister, James F. McKindrick and the plaintiff (Joseph Crow) were partners doing business as merchants in said town of Sullivan, under the name and style of McCallister & Co.; that on said day they purchased from one Solf with the money of the firm, and for the use of the firm, the property in controversy, but that the title thereto was taken by McCallister, who negotiated the purchase in his own name; that in the month of October, 1869, said McCallister absconded, taking with him a large portion of the firm assets, and leaving the firm greatly involved; that said firm was thereupon dissolved, and its business and affairs were duly settled in the Franklin circuit court, and that on the 13th of October, 1870, Allen P. Richardson, Esq., acting under the authority of said court as receiver in said proceedings, and with the approval of the court, sold and conveyed to the plaintiff the lot in controversy, of all which defendant (Drace) had notice; that soon after McCallister absconded, the defendant (Drace) instituted a suit against him by attachment based on an individual indebtedness of said McCallister to him, obtained judgment in said suit, and purchased at an execution sale thereunder, on the 13th of October, 1870, the said lot, received a deed for the same from the sheriff and instituted an action of ejectment against the plaintiff (Crow), based upon said sheriff's deed, to recover the possession of said lot, and prayed the relief heretofore stated.

The defendant in his answer, admitted the institution of the proceeding by attachment, his purchase at the execution sale, the institution of the action of ejectment, and that the title to the lot was in the name of McCallister, but denied all other allegations of the petition.

At the hearing a decree was entered for the plaintiff as prayed.

The grounds relied upon by the plaintiff in error to reverse this decree are-- first, that it does not appear from the testimony that the lot in controversy was partnership property; and,...