Davis v. Owenby

• Decision Date: 31 March 1851
• Parties: DAVIS v. OWENBY.
• Court: Missouri Supreme Court

14 Mo. 170

DAVIS

v.OWENBY.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM MONROE CIRCUIT COURT.

At the September term of Monroe Circuit Court, 1847, the appellant sued the appellee in ejectment for the west half of the northwest quarter of section 17, township 53, range 12 west, containing 80 acres of land. Plea, not guilty, and issue. At the September term, 1848, a trial was had, a non-suit was taken, a motion to set it aside was made and overruled; a bill of exceptions allowed and signed by the court, and an appeal taken by appellant to the Supreme Court.

The appellant proved a suit instituted by one Daniel G. Davis against James M. Yager in Monroe Circuit Court, and a prosecution thereof to judgment, at the December term, 1843, on the 6th of the month, for the sum of three hundred and fifty dollars debt and sixty-four dollars and seventeen cents damages, and five dollars and eighteen cents cost. That execution issued on said judgment to Monroe county as follows: 1st. On the 22nd December, 1843, returnable to May term, 1844, without any part satisfaction. 2nd. On the 27th August, 1842, returnable to September term, 1845, without any part satisfaction. 3rd. On the 7th of March, 1846, returnable to April term, 1846, satisfied to the amount of one hundred and seven dollars, by the sale of town lots in Middlegrove. 4th. On the 24th August, 1846, returnable to the September term, 1846. In this writ, the judgment was stated of the Monroe Circuit Court of 6th September, 1844, and the recovery against James S. Yager, the name of Daniel G. Davis, the plaintiff, with the sums more correctly stated, and the mandatory part of the writ described the levy of the estate of the said James M. Yager, as compared with the judgment. This execution was levied amongst other tracts of land upon the land in controversy, and this tract with others sold on the 25th day of September, 1846, by the sheriff and was purchased by Jno. Davis (the appellant), at $20, for which the execution was credited.

The sheriff of said county executed a deed to the appellant on the same day for the tract of land sued for, which was duly acknowledged and recorded. Upon the appellant's offering this execution, levy, sale and the deed in evidence the appellee objected to its introduction, because there was no such judgment as was recited in said deed, and the court rejected all the evidence, the appellant excepting to the opinion. The appellant read a fifth execution, issued 3rd November, 1846, returnable to the April term, 1847, which was levied on the 4th November, 1846, upon the same land in suit, and which was sold for $25 00, which was credited on the execution, and John Davis (appellant) was the purchaser, and on the 10th June, 1847, received a conveyance by deed from the sheriff for the land which was duly acknowledged and recorded.

The appellant proved that the appellee, Owenby, was in possession of the tract of land sued for, at and before the commencement of this suit; that the defendant claimed possession of it under one Wm. Dulaney, from whom he stated he had gotten possesion, and that Dulaney, at the date of the judgment of Daniel G. Davis against Yager, was in possession of the tract, and proved that the annual value of the rents and improvements of the land were $25 00. The appellant also proved the execution of a deed from Yager and wife to Dulaney, of the 7th June, 1844, and filed for record on the 7th April, 1846, and recorded, for the same tract of land in controversy in this suit, and here closed.

The appellee then proved that James M. Yager on the 23rd July, 1842, executed his title bond to Wm. G. Dulaney, in consideration of four hundred dollars to be paid in installments, the last of $200 on the 25th December, 1843; that he would convey to Dulaney the same tract of land now sued for, and proved that Dulaney, at the date of the bond, took and held possession of the land until his death in the year 1846. He further proved that Daniel G. Davis, on the 20th April, 1846, for valuable consideration, assigned by deed in writing to one Joseph Hearseman, the full amount of the judgment of 6th December, 1843, against said James M. Yager. He further proved that the said Hearseman, by writing, of the 23rd September, 1846, assigned to John Davis (appellant) the full amount due on the same judgment for valuable consideration.

The appellee proved notice of Yager's sale to Dulaney, by Wm. G. Howell, attorney at law, for Daniel G. Davis and Joseph Hearseman, and John Davis, after Hearseman had obtained the assignment of the judgment from Daniel G. Davis, and before John Davis purchased his assignment. That Hearseman obtained control of the judgment, not by witness' advice, but as he said,to protect some lots and land subject to its lien, which he claimed as purchased from Yager, or by sale of Yager's land at previous execution sale, and upon which Davis' execution was then levied, and the purchase by John Davis was for the same object, as stated by Davis, to protect lands he had previously obtained of Yager, which were subject to levy, and to avoid such levy and re-sale of them. He also proved that Jas. G. Davis and Jno. Davis paid said Hearseman one hundred dollars, whilst he had title to the judgment, to release lands they claimed to have purchased of Yager, and which were under levy by the execution whilst owned by Hearseman. This testimony of notice of title from Yager to Dulaney, offered through the attorney of Davis, Hearseman and the appellant respectively, and the disclosures of their purposes in levying the judgment was objected to by appellant, as [a breach of] professional confidence in Wm. Howell, the witness, but the objection was overruled and the testimony allowed, the appellant excepting.

The appellee proved by Joel Maupin, the sheriff, who made the sale of the land in dispute, on the 10th of June, 1847, that before the sale was made to Davis, the appellant, Samuel Owenby, as administrator of Wm. Dulaney, gave public notice to the bidders of the title bond and deed held by him, given by Yager to Dulaney in his life-time. The appellee proved by Joseph Hearseman, that he had notice of Yager's sale to Dulaney before he obtained his assignment of Daniel G. Davis' judgment. He had bought of Yager some lots and land, and had obtained a deed for them before Davis' judgment; that the deed was taken out of his desk without his knowledge, and it was unrecorded. He had purchased other lands of Yager, sold under execution of Chas. Allen, older than Daniel G. Davis', but he apprehended there was some irregularities; all their lands were levied upon by Davis' execution, and he was induced to purchase the judgment and execution to get it off the lands he had bought, and perfect his title to them, that the execution involved lands of his, obtained under Yager, to the amount of some $1,500, and that the lands levied on execution which he wished to secure were to the value of the execution; and it was the agreement with Davis (appellant) when he sold the judgment to him, that the execution was not to be used by him to affect any of his lands he claimed; but at this time said Davis has it now levied on them. This was all the evidence in the cause. The trial was had, by consent, before the court, without the instruction of the jury.

The appellant asked the instructions as to the law: 1. That in law the eldest legal title shall prevail. 2. That the judgment, execution, levy and deed of the sheriff of the 25th September, 1846, is a good legal title, and conveys the debtor's title to the land had on the 6th December, 1843. 3. That the judgment, execution, levy and sheriff's deed of the 10th June, 1847, is a good legal title, and conveys the debtor's title in the land therein, owned on the 6th November, 1846, and the sale and conveyance in evidence, is a lien upon the land, and which continued up to the sale. 5. That the sheriff's deeds to the plaintiffs of 25th September, 1846, and 10th June, 1847, have relation in title to the date of the judgment, and must prevail over the unrecorded deed of Yager to Dulaney offered by defendant. 6. That any title bond or equitable purchase of Dulaney from Yager, forms no ground of defense against the plaintiff's recovery. 7. That notice to the plaintiff, purchaser, at sheriff's sale, of the equitable purchase by Dulaney, or of his unrecorded deed, made after judgment and before sale, does not affect the relation of his (plaintiff's) deed to the date of judgment. 8. That both sheriff's deeds of plaintiffs are elder in law to the unrecorded deed of Yager to Dulaney. 9. That if any sum was due on the execution of Daniel G. Davis against Yager, at the time of either sale under execution, the sale is not void. 10. That the execution was under direction of plaintiff, and any assignee under him, and at any time when respectively owned by either, could at the will of the owner be levied upon any land in the county held by the debtor. 11. That any agreement (of pretended owners of any land claimed as subject to levy) to pay any money, or any such payment by strangers to the execution, to its owner, to procure him not to levy on such land, is no payment in favor of the debtor in execution. Unless the execution was fully paid off for defendant's use to some of the owners of the execution, the same was operative in law in the officer's hands, to levy, sell, and convey debtor's lands. 12. That if the origin of title in both plaintiff and defendant was in Yager, and by both deduced from him, the plaintiff need not show title from the government down to Yager. 13. That if Yager made a deed to Dulaney, and the defendant holds possession of the land, claiming it under Dulaney, and with his consent, it is evidence of the defendant's holding under a title from Yager, and the defendant cannot deny that Yager had title. The court gave the 1st, 6th, 10th, 11th, 12th, 13th, and refused to give the others, to which the appellant exc...