Davis v. Kline
| Decision Date | 31 October 1882 |
| Parties | DAVIS, Appellant, v. KLINE. |
| Court | Missouri Supreme Court |
Appeal from Henry Circuit Court.--HON. F. P. WRIGHT, Judge.
REVERSED.
M. A. Fyke and Land & Sparks for appellant.
B. G. Boone for respondent.
This is a suit to set aside a conveyance of real estate made by the defendant Kline, and alleged to be in fraud of creditors. The plaintiff is a purchaser at execution sale, under two judgments against said Kline. The questions presented for determination arise upon the sheriff's deed to the plaintiff. The deed recites that on the 17th day of February, 1875, judgment was rendered against Kline, in favor of Brockmeyer & Rankin, for the sum of $179.75, and that on the 24th day of February, 1875, another judgment was rendered against Kline, in favor of Ossing & Harig, for the sum of $200, and that upon said judgments executions were issued in favor of the parties recovering the same on the 6th day of March, 1876, under which the property in question was sold to the plaintiff in this suit. The plaintiff offered in evidence in support of the deed, a transcript of a judgment in favor of Brookmire & Rankin, rendered on the 17th day of February, 1876, and an execution issued on the 6th day of March, 1876, which recites a judgment in favor of Brookmire & Rankin, and against Kline, rendered on the 17th day of February, 1875. Plaintiff also offered in evidence the transcript of a judgment in favor of Ossig & Herig, rendered on the 24th day of February, 1876, and an execution issued March 6th, 1876, which recites a judgment in favor of Ossig & Herig, and against Kline, rendered on the 24th day of February, 1875. The circuit court held the deed to be invalid, and the plaintiff has appealed.
It is contended for the defendant that both of the judgments recited in the deed are void, for the reason that each was rendered in the firm name, and not in the names of the individuals composing the firm, and that the deed, therefore, conveys no title. It was expressly decided in Fowler & Wild v. Williams, 62 Mo. 403, that judgments rendered in favor of a firm, by the firm name, are not void. This decision seems to have been overlooked by counsel.
It is also contended for the defendant, that the deed is invalid, because it fails to correctly recite the dates of the judgments. In Wilhite v. Wilhite, 53 Mo. 71, it was held that the essential recitals required by the statute are “the names of the parties to the execution, the date when issued, the date of the judgment, the description of the property, and the time, place and manner of sale.” It will be seen that the deed recites the names of the parties to the executions with sufficient accuracy, the substitution in the deed of the name ““Brockmeyer” for “Brookmire” not being a material variance, and it also correctly states the dates when the executions were issued. The deed also recites the dates of the judgments as recited in the execution, and the amounts thereof; but, as has been seen, the dates of the judgments as recited in the executions, do not conform to the dates of the judgments as shown by the judgment roll.
We are of opinion that the deed properly followed the recitals in...
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