Crowley v. Wallace

• Decision Date: 31 July 1848
• Citation: 12 Mo. 143
• Court: Missouri Supreme Court
• Parties: CROWLEY v. WALLACE.

12 Mo. 143

CROWLEY

v.WALLACE.

Supreme Court of Missouri.

July Term, 1848.

ERROR TO HENRY CIRCUIT COURT.

STRINGFELLOW, for Plaintiff.

1st. The summons issued by the justice of the peace was not so served as to authorize a judgment by default against William Crowley, Sen. It does not appear that the writ was served in the township. 2nd. The first execution issued by the justice does not appear to have ever been returned, and thus the second was improperly issued. 3rd. The return of the constable on the execution issued 7th July, 1845, is insufficient to authorize the clerk to issue on the transcript. At that time the constable had jurisdiction to levy and sell under executions throughout the county, and it should appear that there was no property of defendant subject to the constable's execution. 4th. The copy of that execution, with a copy of the return, were improperly admitted as evidence. The originals should have been produced. 5th. The deed of the sheriff should have been excluded. The suit was instituted 9th March, 1846, and the deed executed 20th April following. 1 Richardson's Eq. R. 340; Buxton v. Carter, 11 Mo. R. 481. 6th. The sheriff's deed was not acknowledged in court. The deed offered in evidence purported to convey certain lots of land, while the acknowledgment offered in evidence was of a deed conveying other and different lands; both the deed and acknowledgment should have been excluded. 10 Pick. 309; 5 Blackf. 106. 7th. The evidence offered by plaintiff to show that the deed from William Crowley, Sen., to Daniel Crowley, was illegal and insufficient. It consisted entirely of the declarations of William, made after the sale to Daniel. 8th. The instructions given for the plaintiff should have been refused. 1. They submitted to the jury matters. of law which were exclusively for the consideration of the court. 2. They were erroneous in declaring that the deed was void if William Crowley, the vendor, intended to defraud his creditors. The deed was valid unless Daniel Crowley were a party to the fraud. 9th. The instructions asked by defendants were manifestly legal, and supported by the evidence. 10th. The verdict should have been set aside. 1. The sheriff's deed under which plaintiffs claimed, was not made until some forty days after the institution of suit, so that they had no title at that time. 2. The sheriff's deed was never acknowledged; until properly acknowledged it conveyed no title. 3. No proof was given that defendants had ever been in possession of any of the land sued for except forty acres, being the southeast quarter of southwest quarter section 1, township 40, range 27, nor was any evidence given that defendant held this tract, claiming title to the others, so as to give implied possession. On the contrary, the deed to Daniel Crowley, under which defendants claimed, if at all, showed a claim to other and different lands from those sold by sheriff and sued for. 4. The forty acres of which defendants were in possession were conveyed by the deed of William to Daniel Crowley long prior to the suit by Wallace and Wallace against William Crowley, and the evidence given to show such deed fraudulent was altogether illegal and insufficient.

STUART & MILLER, for Defendants. In this case the plaintiffs or appellees will insist that the court committed no error in permitting the plaintiffs to read the summons issued by the justice against William Crowley, that although not strictly legal proof, that it was not necessary that the plaintiff should go back and show any proceedings before the justice prior to the filing the transcript, and that such proof being unnecessary could not prejudice the defendants, that it was insufficient for the plaintiffs to have produced the transcript of a judgment under which he claimed. That the transcript of the judgment filed in the Circuit Court with the execution and levy and certificate of sale by the sheriff was competent legal proof for the plaintiffs. See case of Jones v. Luck, 7 Mo. R. 551.

The appellees will also insist that the sheriff's deed offered in evidence was properly admitted as evidence in this suit, although it bore date subsequent to the institution of the suit, the levy and sale under which the deed was executed was made prior to the institution of the suit, the suit being commenced in March, 1846, and the levy and sale made in the months of September and October, 1845, that is, the levy in September and the sale in October, and that the deed subsequently made in April, 1846, related back to the day of sale. The defendants set up in their defense a deed from William Crowley to Daniel Crowley in 1844. But the plaintiffs introduced proof that that deed was fraudulent, and the question being submitted to the jury they so found it to be by their verdict, consequently the defendants showed no superior outstanding title; in fact William Crowley, the defendant in the execution under which the Wallaces claim, could not set up an outstanding title, and the title set up by Daniel Crowley was proved to have been fraudulent and so held by the jury, so that in this case there was no intervening or prior purchase to prevent the sheriff's deed from relating back to the day of sale by the sheriff. As to the doctrine that the sheriff's deed will relate back to sale and vest the title in the purchaser from the day of sale, see the following authorities: 20 Johns. 537; 15 Johns. 309; 3 Cowen, 75; 2 Wendell, 507; 9 Mo. R. 528.

The plaintiffs or appellees will therefore insist that upon these points the Circuit Court committed no error. The instructions asked by the defendants were properly refused, and if not, yet they were not prejudiced, as the law was correctly given by the court and covered the grounds upon which the defendants' instructions were based. It will be recollected by the court that Daniel Crowley was not a party in possession, but came in upon his motion to be made a defendant, and set up a deed from William Crowley to himself prior to the sheriff's sale, but which deed was held to be fraudulent and so decided by the jury. The evidence of the fraud was read to the jury in depositions and other proof, and no exceptions or objections made upon the trial to the competency or relevancy of the proof.

NAPTON, J.

This was an action of ejectment to recover a tract of land, described in the declaration as the southeast quarter and east half of northeast quarter of section 2; the southeast quarter of southwest quarter of section 1, and the east half of northeast quarter of section 5, all in township 40, range 27. The plaintiffs had a verdict and judgment. The title was as follows: 1st. An original summons issued by a justice of the peace, requiring William Crowley to appear before him on the 22nd July, 1844, in the matter of B. F. & T. B. Wallace v. Crowley, on which was returned: “Summons served by reading the same to W. Crowley on the 13th July, 1844: M. Gragg, constable.” 2nd. A transcript of a judgment, filed in the office of the clerk of the Circuit Court, of B. F. & T. B. Wallace v. Crowley. This transcript showed a judgment by default on 22nd July, 1844--execution, August 5, 1844--renewed 15th October and returned 17th December, 1844, no property found--and the transcript filed in the clerk's office of Circuit Court February 3rd, 1845. 3rd. An execution from the justice dated 7th July, 1845 and returned nulla bona. 4th. An execution from the Circuit Court dated 22nd September, 1845, the return of which shows a levy, on the 22nd September, 1845, upon the land described in the declaration--a sale on the 15th October, 1845, to plaintiffs. 5th. A deed from the sheriff, for the same land, dated 20th April, 1846. This deed was acknowledged at the April term, 1846, the record of which describes the land as the deed does, excepting that the southeast quarter of the southwest quarter is placed in section 5 instead of section 1, the words “of section 1,” being omitted. It describes the land further as the same levied and sold under execution in the case of Wallace v. Crowley, &c. The deed was filed 11th June, 1846. All these documents were objected to and exceptions taken to their admission.

Oral testimony was given to show, that W. Crowley, Sen. (one of the defendants) was in possession of the premises sued for. But the witness in describing the land, only spoke of the southeast quarter of southwest of section 1, township 40, range 27, as part of the land in possession of the defendant.

Daniel Crowley, who was not an original defendant, had been admitted as such, at his instance.

The defendants read a deed from W. Crowley, Sen., to Daniel Crowley, dated 8th March, 1844, conveying the southeast quarter...