Daugherty v. Gangloff

• Decision Date: 19 December 1911
• Citation: 239 Mo. 649,144 S.W. 434
• Parties: DAUGHERTY v. GANGLOFF et al.
• Court: Missouri Supreme Court

144 S.W. 434

239 Mo. 649

DAUGHERTY v. GANGLOFF et al.

Supreme Court of Missouri, Division No. 2.

December 19, 1911.

Rehearing Denied February 6, 1912.

1. EXEMPTIONS (§ 114)—FAILURE TO NOTIFY DEBTOR OF EXEMPTION RIGHTS.

Sale of land under execution is not invalidated by the sheriff's failure to notify the debtor of his exemption rights, as required by Rev. St. 1909, § 2184.

2. EXECUTION (§ 70)—NOTICE—NECESSITY.

Rev. St. 1909, § 2220, which requires plaintiff in certain cases to give defendant written notice of execution, does not apply to a judgment obtained after personal service of summons on a resident defendant who appeared on the merits.

3. APPEAL AND ERROR (§ 171)—REVIEW—THEORY NOT PRESENTED BELOW.

A case will not be reviewed on appeal on a theory not presented below.

4. EXECUTION (§ 250)—SALE—SETTING ASIDE —INADEQUACY OF PRICE.

Sale for $100 under execution of land worth $907.75 does not show such grossly in-adequate consideration as to warrant vacation of the sale, especially where, at the time of the sale, the records did not disclose that the debtor had any interest in the property.

5. EXECUTION (§ 247)—SALE—VACATION—GROUNDS.

The clouded condition of the title to land when it was sold under execution does not authorize vacation of the sale, in the absence of a showing of fraud or unfair dealing of the creditor.

6. EXECUTION (§ 253)—SALE—VACATION— BURDEN OF PROOF.

The burden being on one who seeks to set aside an execution sale to show that it was not fairly conducted, to entitle him to relief because the notice of the sale provided that the land would be sold "subject to all prior liens and judgments," he was bound to show that there were no prior liens or judgments.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Action by Antonio Daugherty by O. D. Jones, guardian, against Mary C. Gangloff and others. Judgment for defendants, and plaintiff appeals. Affirmed.

O. D. Jones, for appellant. L. F. Cottey and D. A. Rouner, for respondents.

KENNISH, P. J.

This case is before us on a second appeal. The opinion delivered on the former appeal is reported in 204 Mo. 228, 102 S. W. 1099. The facts involved in the former appeal and the ruling of this court thereon, briefly stated, were as follows: John Daugherty, a resident of Knox county, Mo., died in 1874. By his will he devised to his wife, Ellen, the real estate in controversy, being lots 5, 8, 9, and 10, in block 5, in the original town, now city, of Edina, in Knox county, Mo., during her life or widowhood, with power to sell any or all of said property. At her death or remarriage the remainder was to go to in equal portions to the four children of the testator, viz., Bernard, Mary C., Catherine, and John A. S. Daugherty. Ellen Daugherty, after the death of her husband, executed a deed of trust on all of the property so devised, except lot 5. Ellen Daugherty died in 1894. Thereafter the property described in the deed of trust, pursuant to the terms of said deed, was sold at trustee's sale. James Daugherty, a brother of John Daugherty, deceased, purchased the property, received a trustee's deed therefor, and subsequently conveyed to Catherine Daugherty and Mary C. Gangloff, formerly Mary C. Daugherty, wife of the defendant Anthony R. Gangloff. Bernard Daugherty conveyed all of his interest in all of the lots to Catherine and Mary C. On May 25, 1903, this suit was instituted by John A. S. Daugherty in the circuit court of Knox county against Catherine Daugherty, Mary C. Gangloff, and Anthony R. Gangloff. The relief asked was that the deed of trust, trustee's deed, and deed from James Daugherty to Catherine and Mary C. be canceled; that defendants be required to account for rents and profits; that plaintiff be adjudged the owner of an undivided one-fourth interest in the property, and that partition thereof be made. Before the suit was tried John A. S. Daugherty died, and the action was revived in the names of his widow, Dena Daugherty, and his minor son, Antonio Daugherty, who appeared by O. D. Jones, guardian ad litem. An amended petition was filed. In addition to the matters alleged and the relief prayed for in the original petition, it was alleged that after the institution of the suit John A. S. Daugherty's interest in the property had been sold at sheriff's sale under an execution issued upon a judgment in favor of Anthony R. Gangloff and against John A. S. Daugherty, and that at such sale Anthony R. Gangloff purchased the property sold, and received a sheriff's deed therefor. Plaintiffs asked that this deed also be set aside. In their separate answer to the amended petition defendants Catherine Daugherty and Mary C. Gangloff set up a deed from John A. S. Daugherty and Dena Daugherty, conveying to them lots 5, 8, 9, and 10, in block 6, in the city of Edina, alleged mistake in the description of the property conveyed by said deed, and asked that the deed be reformed so as to describe the property in controversy, being the same numbered lots in block 5. The circuit court found and adjudged that the deed of trust, trustee's deed, and the deed from James Daugherty to Catherine and Mary C. should be set aside; that the deed from John A. S. Daugherty and wife to Catherine and Mary C. should be reformed as against Antonio Daugherty, so as to describe the property in controversy, but should not be so reformed as against Dena Daugherty; that Dena Daugherty was entitled to dower in an undivided one-fourth of said property, but that Antonio had no interest therein. There was no finding as to the validity of the sheriff's deed. Antonio Daugherty and all of the defendants appealed to this court. On such cross-appeal it was held that no error was committed by the trial court in setting aside the deed of trust, trustee's deed, and deed from James Daugherty to Mary C. and Catherine, but that error was committed in reforming, as against Antonio, the deed from John A. S. Daugherty and wife to Catherine and Mary C. The judgment was accordingly affirmed in so far as it awarded dower in the property to Dena Daugherty, but reversed as to Antonio and remanded for further proceedings in order that his interest might be ascertained and determined in accordance with the views expressed in the opinion. No ruling was made by this court as to the validity of the sheriff's deed, that question not having been passed upon by the trial court, and the evidence upon that issue not having been fully submitted by reason of a remark made by the trial court that John A. S. Daugherty had, prior to the sheriff's sale, conveyed all of his interest in the property by the deed which this court held was erroneously reformed.

After the cause was thus remanded to the circuit court, Antonio Daugherty filed another amended petition, in which the validity of the sheriff's deed to Anthony R. Gangloff was assailed upon the following grounds:

First. That at the time of the sale John A. S. Daugherty resided in Shelby county, Mo., and was not given notice of the execution and sale, or notice of the exemption rights to which he was entitled as the head of a family.

Second. That in the notice of sale the sheriff gave notice that he would sell John A. S. Daugherty's interest in the property subject to all prior liens and judgments.

Third. That the price at which the property was sold was grossly inadequate, which inadequacy was caused by the recital in the notice of sale that the property would be sold subject to all prior liens and judgments, and by the further fact that at the time of the sale, owing to the fraudulent acts of the defendants in procuring and placing of record the various conveyances involved in the first trial of the case, John A. S. Daugherty had no apparent title to any interest in the property, all of which conveyances were subsequently adjudged to be illegal and void by both the circuit court and this court.

In the second count of his amended petition plaintiff asked that he be adjudged the owner of an undivided one-fourth interest in the property, subject to the dower of Dena Daugherty, and that partition of the property be made. The answers denied that plaintiff had any interest in the property, pleaded the sheriff's deed to Anthony R. Gangloff, denied plaintiff's allegations assailing the validity of that deed, and asked that the title be quieted in Anthony R. Gangloff. The quitclaim deed from John A. S. Daugherty and wife involved in the former appeal was not pleaded; the defendants relying solely upon the sheriff's deed.

The facts developed at the second trial bearing upon the validity of the sheriff's deed were, in substance, as follows: In December, 1900, Anthony R. Gangloff recovered judgment against John A. S. Daugherty in the circuit court of Knox county for the sum of $917.81. Execution was issued there-on afterwards, and on the 12th day of May, 1903, the sheriff levied upon John A. S....