Durette v. Briggs

• Decision Date: 28 February 1871
• Citation: 47 Mo. 356
• Parties: RICHARD H. DURETTE, Plaintiff in Error, v. BENJAMIN BRIGGS AND ABRAHAM MCPIKE, Defendants in Error.
• Court: Missouri Supreme Court

47 Mo. 356

RICHARD H. DURETTE, Plaintiff in Error,

v.BENJAMIN BRIGGS AND ABRAHAM MCPIKE, Defendants in Error.

Supreme Court of Missouri.

February Term, 1871.

H. L. Lipscomb, for plaintiff in error.

The courts below erred in admitting the testimony of Muldrow, McPike, Briggs, and others, to contradict the sheriff's deed to Proctor. Muldrow was himself the sheriff. (Jackson v. Cray, 12 Johns. 427; Jackson v. Vanderheyden, 17 Johns. 167; Jackson v. Eberle, 20 Johns. 49; Jackson v. Roberts, 7 Wend. 83; Reed v. Austin, 9 Mo. 723.)

Aside from the Proctor execution, the sale under the Rice execution carried the title. The Rice execution was against B. M. Briggs only, and was based upon the oldest judgment--August 26, 1859. Even if more land was sold than was sufficient to pay the Rice debt, this would be no defense. It might be an irregularity (if true, which is denied), to be corrected by direct application on the part of B. M. Briggs to the Circuit Court for that purpose. But whilst the sale and deed remain, it can be no defense to plaintiff's claim. (Reed v. Austin, 9 Mo. 713; Huks v. Perry, 7 Mo. 346; Landes v. Perkins, 12 Mo. 238; Draper v. Bryson, 17 Mo. 71.) The lien of the Rice judgment was continued by the levy of the execution. (Bank v. Wells, 12 Mo. 361.)

Ely, grantor of B. M. Briggs, waived his lien as vendor when he made a deed and took B. M. Briggs' note with John C. Briggs as surety. (4 Kent, 153; Fish v. Howland, 1 Paige, 20; Delassus v. Porter, 19 Mo. 425; Adams v. Cowherd, 30 Mo. 459; Sullivan v. Ferguson, 40 Mo. 79-90; 2 Washb. Real. Prop. 90-3.) Ely having by deed passed the title to B. M. Briggs, no lien could exist in favor of his assignee Martin, and plaintiff being no party to Martin's suit and decree in Ralls Circuit Court, is not affected thereby. (4 Kent, 153, note b; 11 Gill. & Johns. 217; 6 How., Miss., 362; 1 Paige, 301; 2 Washb. Real Prop. 92-4; 30 Mo. 459-61.)

Again, Martin had taken a note from B. M. Briggs and J. C. Briggs, and the note assigned, if any, and the assignment thereon, if any, had long before his suit in Ralls passed away and ceased to exist.

Defendant's instructions should have been refused. The first instruction assumes the existence of a vendor's lien in behalf of Martin, and asserts that the non-payment of a part of the purchase money creates a lien, ignoring the facts in proof--that Ely, grantor of Briggs, had made an absolute deed and taken independent security; that Martin was his assignee, and that the assigned note had been surrendered to Briggs.

J. T. Redd, for defendants in error.

A recital in a deed is not conclusive, and has not been so held except in a class of cases where it is introduced against a party to the reciting deed, or one who claims under a party by title derived subsequent to the reciting deed. (Crane v. Morris et al., 6 Pet. 611; Penrose v. Griffith, 4 Binn. 231; Carver v. Jackson, 4 Pet. 83; Stewart v. Butler, 2 Serg. & R. 382; see also Greenl. Ev., §§ 2, 3, note 2; id., §§ 204, 279; Fine v. St. Louis Public Schools, 30 Mo. 143, 173-4; Hempstead v. Easton, 33 Mo. 147.) The statute (R. C. 1855, p. 748, § 56) does not say the recital shall be even prima facie sufficient to prove the fact recited.

A salo under a satisfied execution is void for want of legal authority to sell, and will not pass title. (Sherman v. Boyce, 16 Johns. 446; Hammett v. Wyman et al., 9 Mass. 142; King v. Goodman, 16 Mass. 64.) By analogy to the rule as above stated, the authorities aoundantly show that where the officer has once levied an execution on the personal property of the debtor sufficient to satisfy the debt, he can not legally make a subsequent levy of that execution on other property, for the reason that the first levy is a satisfaction prima facie of the execution. (Clark v. Withers, 1 Salk. 323; Hoyt v. Hudson, 12 Johns. 208; Wood v. Torrey, 6 Wend. 563; Ladd v. Blunt, 4 Mass. 403.)

The law attaches to the debt for the purchase money, as an incident thereto, a lien upon the lands sold, which may be enforced against the vendee and all subsequent purchasers under him with notice.

The lien being but an incident to the debt, the assignment of the debt by Ely to Martin passed the incident just as the assignment of a note, secured by a mortgage, passes to the assignee the mortgage lien as an incident.

WAGNER, Judge, delivered the opinion of the court.

This was an action of ejectment instituted by the plaintiff in the Ralls County Circuit Court against the defendant Briggs, who was in possession of the land; and, on motion, McPike, who claimed to own the same, was made a co-defendant. It is admitted that both parties claim to derive title from Briggs as the common source. The plaintiff's claim originates in a deed from the sheriff of Ralls county, in which are recited several executions under which the sales were made. The judgments whence the executions were issued were all rendered in March, 1862, except one in favor of Rice, which was rendered in August, 1859, and one in favor of Proctor, rendered in August, 1860. The Rice judgment was against B. M. Briggs, the defendant, alone. The other judgments were all against B. M. Briggs and J. C. Briggs, and some of the judgments rendered in 1862 were against them in conjunction with other parties.

The defendant McPike claims title under a deed of trust which was executed by B. M. Briggs to Ralls as trustee, in January, 1861, and recorded in March, 1861. He also claims by virtue of a purchase under execution, on a judgment against B. M. Briggs for a part of the purchase money of the land, in favor of one Martin, against Briggs, which judgment was rendered specially against the land for the purpose of foreclosing the vendor's lien. He contends that the judgment in favor of Proctor, which was older than the deed of trust, had been paid at the time of the sale of the B. M. Briggs land, and that, therefore, the sale of the sheriff was without authority, and carried no title as against him. The Circuit Court by its instructions sustained both of the positions taken by the defendant, and judgment was accordingly given for him.

The first objection urged by the appellant against the ruling of the court below is that it was incompetent to introduce parol evidence to vary or contradict the recitals of the sheriff's deed. The deed recites that the lands of both B. M. Briggs and John C. Briggs were set up and sold to satisfy the executions, but there is nothing to show which was sold first in the order of time.

It appears that the land of John C. Briggs brought upward of $7,000, and that, after satisfying the Proctor judgment, there was more than $5,000 left to be distributed on the junior judgment. As the lands of both the Briggs's were liable for the judgment of Proctor, it is material to the rights of the parties to know which land was first sold.

If Proctor's judgment was paid off and satisfied with the proceeds of the sale arising from J. C. Briggs' land, then the purchase by McPike of the land of B. M. Briggs, under the deed of trust, vested in him a good title, as the trust deed constituted a prior lien over all the judgments.

To show that the lands of J. C. Briggs were first sold by the sheriff, the sheriff himself and several other witnesses who attended the sale were permitted to testify, and they state unequivocally that such was the fact. There was also some evidence tending to show the contrary, but the fact was for the jury. The only question for this court to decide is whether the evidence was admissible.

The counsel for the appellant has referred us to several cases in the New York Reports, which seem to sustain the position assumed by him as to the inadmissibility of the testimony.

The case of Jackson v. Roberts, 7 Wend. 83, which purports to follow certain cases in Johnson's Reports, decides the very question presented here in favor of the views of the appellant. That case holds that where a sheriff had two executions, on which he sold four several distinct parcels of land, and the first two parcels described in his deed brought an amount more than sufficient to satisfy the older execution, and no sale was valid under the junior execution; still the last two parcels were legally sold, and passed by the sheriff's deed to the purchaser, the sheriff stating in the deed that the seizure and sale were by virtue of both executions. It was declared by the court that it was not allowable to a third person collaterally to introduce evidence to show that the sale was had only by virtue of and under one execution. This case was afterward taken to the Court of Errors, where the judgment was affirmed, the court standing eleven for affirmance and nine for reversal. Senators Edmonds and Seward delivered dissenting opinions, and the former, in a very able opinion, discusses the question on principle and reviews the authorities, and I think satisfactorily shows that the...