Dickason v. Fisher

• Decision Date: 03 February 1897
• Parties: Dickason v. Fisher, Appellant
• Court: Missouri Supreme Court

37 S.W. 1114

137 Mo. 342

Dickason v. Fisher, Appellant

Supreme Court of Missouri, Second Division

February 3, 1897

Appeal from Ralls Circuit Court. -- Hon. B. E. Turner, Judge.

Reversed.

W. M Boulware and G. A. Mahan for appellant.

(1) The executions having been issued from the Hannibal court of common pleas, and made returnable to that court, the levy of them on the lands in Ralls county brought said lands, so far as said executions were concerned, under the exclusive jurisdiction of that court. Fisher, by buying at the execution sale, brought himself within that jurisdiction. As to all questions concerning that sale and the application of its proceeds the Hannibal court of common pleas, under whose process the levy and sale were made, had exclusive jurisdiction. That court had jurisdiction of the process, of the persons, and of the res. That jurisdiction was exclusive. Rorer on Judicial Sales, sec. 148-169, notes 3 and 5; Ibid. secs. 250 and 601. (2) The judgment of the circuit court of Ralls county which was affirmed by this court in Dickason v. Eby, 73 Mo. 133, is a bar to this action. This proceeding is an attempt to indirectly enforce the vendor's lien which this court has adjudged that plaintiff Dickason abandoned. Henry v. Wood, 77 Mo 280; Armstrong v. St. Louis, 69 Mo. 310; Spurlock v. Railroad, 70 Mo. 67; Murphy v. DeFrance, 101 Mo. 151; State ex rel. v. Johnson, 123 Mo. 54; Mason v. Summers, 24 Mo.App. 180; 1 Freem. on Judg., sec. 259. (3) Not only is the judgment in the first suit res judicata on the points to which the court was required by the parties to form an opinion and pronounce judgment, but also on every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence might have brought forward at the time. Greenbaum v. Elliott, 60 Mo. 25; Robinson v. Boyd, 23 S.W. 72; Beloit v. Morgan, 7 Wall. 619; Morris v. Bollers, 31 A. 538; Danoher v. Prentiss, 22 Wis. 311; Willis v. Tozer, 21 S.E. 617; Stone v. United States, 64 F. 667; Greer v. Major, 114 Mo. 157; Jenkins v. Johnson, 4 Jones Eq. (N. C.) 149; Block v. Block, 27 Ga. 40. (4) The bill does not charge nor does the evidence show any fraud on part of Fisher and Eby, certainly not such fraud as would give respondent a remedy. To afford relief it must be actual concocted fraud in the very act of obtaining the judgment. Nichols v. Stevens, 123 Mo. 116; Oxley Stave Co. v. Butler Co., 121 Mo. 630; McClanahan v. West, 100 Mo. 320; Irvine v. Leyh, 102 Mo. 207; Nelson v. Barnett, 123 Mo. 570; Richardson v. Stowe, 102 Mo. 33; Murphy v. DeFrance, 101 Mo. 158; 2 Story's Eq. 1575; Bigelow on Fraud, pp. 86, 87. (5) Admitting everything charged in the bill to be true, there is no fraud shown. There is no pretense that the conduct of Fisher and Eby caused Dickason to obtain his judgments at law, and sell all the land under his executions. It is fair to presume that Eby was not anxious to have his farm sold under these executions, at least there is no evidence that either he or Fisher directly or indirectly induced or influenced Dickason in his procedure. If Dickason committed an error, it was his own deliberate mistake. He waived the vendor's lien of his own free will and can not consistently charge his action on Fisher and Eby. Rutherford v. Williams, 42 Mo. 24; Kerr on Fraud and Mistake, p. 42; Cooley on Torts, pp. 474, 502; Detroit v. Weber, 26 Mich. 284; Long v. Marvin, 15 Mich. 60; Bank v. Albee, 56 Am. Rep. 502; Safford v. Grant, 120 Mass. 20. (6) These parties "dealt at arms' length" on equal terms, and no peculiar relation of trust or confidence existed between them, each might well remain silent as to conduct and be safe. 8 Am. and Eng. Ency. of Law, p. 644; Bank v. Bogarth, 81 N.Y. 101; Darnbman v. Schulting, 75 N.Y. 55; Law v. Grant, 37 Wis. 548; Laidlaw v. Organ, 2 Wheat. (U.S.) 178; Kerr on Fraud and Mistake, 100; Railroad v. Freloff, 100 U.S. 24; Ward v. Packard, 18 Cal. 391; Barnett v. Stanton, 2 Ala. 181. (7) The vendor Wilton conveyed to the vendee Eby, by warranty deed, all the estate he had, and did not reserve a vendor's lien. Wilton only had an implied or equitable lien. Under such conditions Wilton could not assign his vendor's lien to Dickason. It is conceded that it would be otherwise if Wilton had retained the legal title. Adams v. Cowherd, 30 Mo. 461; Smith v. Schneider, 23 Mo. 447; Stevens v. Chadwick, 10 Kan. 406; Strickland v. Summerville, 55 Mo. 166; Bailey v. Smock, 61 Mo. 219; Adair v. Adair, 78 Mo. 633; Avery v. Clark, 81 Cal. 619; Grahen v. Richardson, 128 Ill. 178; Soule v. Hurlbut, 58 Conn. 511; Law v. Butler, 44 Minn. 482; Simpson v. Montgomery, 25 Ark. 365; Williams v. Christian, 23 Ark. 255. (8) The trial judge committed grave error in conceding that Dickason was a senior lien holder, in the face of the decision of the supreme court, holding that he had abandoned the vendor's lien, and hence had no lien. The surplus only stands in the place of the land with reference to those having liens or vested rights therein. Herman on Ex., 456 and cases; 2 Freeman on Ex., sec. 440; Strawbridge v. Clark, 52 Mo. 22; Reed v. Shepperd, 38 Mo. 463; Reid v. Mullins, 43 Mo. 308; Foster v. Potter, 37 Mo. 534; Sparrow v. Hosack, 40 Ohio St. 253; Rudy's Appeal, 94 Pa. St. 338; Indiana Co. Bank's Appeal, 95 Pa. St. 500.

Alexander Martin and F. L. Schofield for respondent.

(1) At the time the agreement between Fisher and Eby was entered into the effect of a sale of the purchaser's interest in land under judgment and execution at law to satisfy the vendor's lien, was an unsettled question in the jurisprudence of this state. Broadwell v. Yantis, 10 Mo. 398; Delassus v. Poston, 19 Mo. 425; Lumley v. Robinson, 26 Mo. 364; Gaston v. White, 46 Mo. 486; Lewis v. Chapman, 59 Mo. 371. (2) In the subsequent case of Dickason v. Eby, 73 Mo. 133, the question was first definitely determined, and the doctrine established that the effect of such a sale would be to extinguish the lien as to the land sold, not only as to the installments included in the judgment, but as to installments falling due in the future, and not included in the judgment at law. (3) The operation of this doctrine is confined to a sale made to a stranger -- a person outside of the parties to the judgment -- or one not bound to pay it. Dickason v Eby, 73 Mo. 133; Hilton v. Bissel, 1 Sandf., ch. 407; Plum v. Studebaker, 89 Mo. 162; Moore v. Lindsay, 52 Mo.App. 474; Tompkins v. Halstead, 21 Wis. 118; Stiger v. Mahone, 24 N.J.Eq. 426; Otter v. Vaux, 6 DeGex, M. & G. 638; 2 Jones on Mort. [3 Ed.], 1887. (4) When the sale at law operates to extinguish the lien of the junior incumbrancer, it attaches to the surplus proceeds of the sale or the liability to pay them. Helwig v. Heitcamp, 20 Mo. 569; Major v. Hill, 13 Mo. 247; Mead v. McLaughlin, 42 Mo. 198; Huffard v. Gottberg, 54 Mo. 271; Reid v. Mullins, 43 Mo. 306; Johnson v. Wilson, 77 Mo. 639; Reid v. Mullins, 48 Mo. 344; Imp. Co. v. May, 24 S.W. 40; 2 Freeman on Ex. [2 Ed.], sec. 447. The lien attaches to the liability to pay. 2 Spenc. Eq. 796. (5) If at such sale the third person or stranger does not buy for himself in good faith or for some one not bound to pay the junior lien, the effect of extinguishing the junior lien will not be legally accomplished. A collusive purchase for or in behalf of the debtor of the junior lien will not operate to divest the junior lien from the land sold. A lien can not be extinguished by fraud. Converse v. Blumrich, 14 Mich. 107; McDole v. Purdy, 23 Iowa 277; Sears v. Smith, 2 Mich. 243; Toby v. McAlester, 9 Wis. 463; Wickman v. Robinson, 14 Wis. 493; Thompson v. Elmore, 18 S.W. 235. (6) The court was justified in laying hold of the land in Fisher's hands to enforce the liability of Fisher for violating the plaintiff's lien on the surplus proceeds of the sale. Rights in equity equivalent to liens may arise under an unlimited variety of circumstances. 2 Spenc., Eq. Jur. 803; 3 Pomeroy Eq. Jur. [2 Ed.], 1234, 1239. First. They may arise from fraud, actual or constructive. Merrill v. Allen, 38 Mich. 487; Koch v. Roth, 37 N.E. 317; Newman v. Moore, 21 S.W. 759; Brown v. Byam, 21 N.W. 684; Yeoman v. Bell, 29 N.Y.S. 502. Second. From breach of contract. Walter v. Janney, 14 S. Rep. (Ala.) 876; Meyer v. Smith, 21 S.W. 995; Stewart v. Wood, 63 Mo. 252; Pratt v. Clark, 57 Mo. 189; Bennett v. Shipley, 82 Mo. 448; Cooper v. Merritt, 30 Ark. 686; Seibert v. Copp, 62 Mo. 182; Mays v. Sanders, 36 S.W. 108. (7) This suit is not res adjudicata. At the time of the former suit the plaintiff knew nothing of the fraud and wrong which is made the material and distinguishing feature of this case. (8) The modern doctrine of res judicata is applied only when the issues in both cases are substantially identical. Freeman on Judgments [3 Ed.], sec. 256; 2 Black on Judgments [Ed. 1891], sec. 674; Black on Judgments [1 Ed.], sec. 828; Phosphate Sewage Co. v. Molleson, L. R. 4 App. Cas. 801; Spurlock v. Railroad, 76 Mo. 67; Moran v. Plankinson, 64 Mo. 337; Hickerson v. City, 58 Mo. 61; State ex rel. v. Alsup, 91 Mo. 172; Lightfoot v. Wilmot, 23 Mo.App. 5; Snodgrass v. Moore, 30 Mo.App. 232; Ford v. Hennessey, 70 Mo. 580. (9) Identity of issues is determined by identity of evidence to support them. Freeman on Judgments [3 Ed.], sec. 259; 2 Black on Judgments, sec. 726. (10) The application of the doctrine is confined to matters which were properly in issue in the former case, and necessarily involved in its determination. They must necessarily have been decided to support the decree. Freeman on Judgments [3 Ed.], sec. 257; Wells, Res Adj., secs. 290-294. (11) The circuit court of Ralls county has jurisdiction over this suit. See Edmondson v. Phillips, 73 Mo. 57. (12) A vendor's lien has always...