Ensworth v. King

• Decision Date: 31 August 1872
• Parties: SAMUEL ENSWORTH, Appellant, v. THOMAS L. KING et al., Respondents.
• Court: Missouri Supreme Court

50 Mo. 477

SAMUEL ENSWORTH, Appellant,

v.THOMAS L. KING et al., Respondents.

Supreme Court of Missouri.

August Term, 1872.

Appeal from Buchanan Circuit Court.

Ensworth & Loan, for appellant.

I. The judgment in the court below declaring the deed of John W. Breckenridge, Lafayette Ardry and Adam Breckenridge, as well as plaintiff's deed from Ardry and Breckenridge, void, is erroneous. 1. The intent of the parties to a deed always governs as to the nature of the deed. (Sibly v. Hood, 3 Mo. 206; Brant v. Robertson, 16 Mo. 145; Wilson v. Drumrite, 21 Mo. 325; Turner v. Kerr, 44 Mo. 429.) 2. There was no issue against the bona fides of the mortgage, and no evidence to support such an issue. 3. The deed was made to secure a debt, which is a good consideration to uphold the deed, and it is therefore not voluntary. (Woodson v. McClelland, 4 Mo. 495; Gamble & Johnston v. Johnson, 9 Mo. 628; Eaton's Adm'r v. Perry, 29 Mo. 96.) 4. If fraud had been alleged it had to be proved. There is not a scintilla of evidence proving fraud. Fraud cannot be presumed. (Dallam v. Renshaw, 26 Mo. 533.) 5. To justify setting aside a deed for fraud, the grantor must have executed it for the purpose and with the intent to defraud, and this must appear in the pleadings and evidence. (Gates v. Lebeaume, 19 Mo. 17; Spencer v. Deagle, 34 Mo. 457-458; Joliffe v. Collins, 21 Mo. 342.) 6. Breckenridge had a right to prefer the grantees in the deed of mortgage over his other creditors, and it is not evidence of fraud. (Duvall et al. v. Raisin, 7 Mo. 449; Chouteau v. Sherman, 11 Mo. 389; Sibly v. Hood, 3 Mo. 206; Cason v. Murray, 15 Mo. 378.) 7. If the deed of Lafayette Ardry and Adam Breckenridge was void or voidable for fraud, appellant's deed is not vitiated thereby unless he had notice of the fraud in the deed of J. W. Breckenridge to Ardry and Breckenridge. (Knox v. Hunt, 18 Mo. 174, 176, 178, 180.)

II. The decree is erroneous in giving the judgment confessed in the attachment suits priority of lien over the judgment belonging to and claimed by appellant. The agreement and confession of judgment, with the stay of execution for twelve months, is a dissolution of the attachment. It is an intermeddling which obstructs the execution of the law, because there is no chance to execute the judgments by appropriate process.

The attachment is only to hold property until it can be sold under execution at the termination of the suit. (R. C. 1855, ch. 12, p. 236, §§ 1, 22, 42; Gen. Stat. 1865, ch. 141, p. 560, §§ 1, 23, 36; also Drake on Attachment, §§ 227, 237, and citations.) It takes the judgment and execution in an attachment suit to hold the property attached after trial and judgment. (R. C. 1855, ch. 12, p. 520, § 42.)

An attachment will hold only such property as is subject to execution. (R. C. 1855, ch. 12, § 19; Drake on Attachments, § 27 and citations.) The statute of 1855 is the statute that governs this case.

A lien by attachment, or any other lien created by law, is dissolved by an agreement entered into by the person who has the benefit of the lien suit and the person whose property is affected by the lien, to delay the process of law for a specified time, because the law thereby becomes inoperative and the property cannot be held by its process. The statute must be strictly pursued.

2. The giving time in consideration of different security is a discharge of the first lien. (Gorman v. Sagner, 22 Mo. 138; 7 J. J. Marsh. 528; C. R. 558.) The plaintiffs in the attachment argued, in consideration of the confession of judgment, that execution should not issue, and thereby discharged the attachments.

When attached property passes out of the custody of the law it is relieved from the attachment. (Drake on Attachment, § 268; id., ch. 11 and 12.) Property attached, which passes to third persons with the assent of plaintiff's attorney, is discharged from the attachment. ( Id., §§ 239, 262 and 282, and citations.) The officer must hold the property under his control, so as to have it subject to be taken on execution of a judgment in the case, or the attachment is discharged. ( Id., §§ 183, 321, 388, 390, and citations of each.)

The object of the attachment is to take the property out of the control of the defendant and keep him from the discharging of it. The agreement between Breckenridge and his attaching creditors defeats this, and shows it was intended to defeat the very object of an attachment. It gave the defendant control of the property. The proceeding by attachment is the exercise of a right created by statute, and to derive the benefit of it the statute must be strictly pursued. (Wright's Ohio, 566; Hardin's Ky. 94.) The principle that the property should be kept in custody of the law to preserve the lien is in keeping with other lien laws. If, for instance, factors, pawnbrokers, landlords, manufacturers, mechanics and others have liens, they are lost when the owner once gets possession of the property. Executions lose their lien even after levy, if stopped by the plaintiff therein.

Strong & Hedenburg, and Chandler, for respondents.

The judgments taken in the attachment suits by the respondents were not judgments taken upon compromise and confession, but, on the contrary, were judgments by default taken as in ordinary attachment suits, and the only compromise in the matter was the withdrawal of the pleas in abatement, and as a consideration therefor, a stay of execution for twelve months. The judgment in the attachment suit related back to the date of levy in 1861. (Lackey v. Seibert, 23 Mo. 85.) The judgments were liens upon the real estate for five years after the date of the rendition, and related back to date of the levy of the writs of attachment in 1861. The plaintiff's judgments were dated in 1864 and 1865, and were junior in lien to the attachment judgments recovered by respondents. Execution may issue upon a judgment at any time. Sections 15 and 16, Gen. Stat. 1865, p. 904, provide that sale of lands under a junior judgment or decree shall pass the title of the defendant, subjected to the lien of all prior judgments and liens then in force, and the money arising from such sale shall be applied to the payment of the judgment or decree under which the same may have been made.WAGNER, Judge, delivered the opinion of the court.

The first question that we will notice is the priority of liens in the respective judgments. It seems that the plaintiff was the owner of several judgments against one Breckenridge, but that some time previous to their rendition a number of suits had been commenced against Breckenridge by attachment, and all his real estate was levied upon, but they had not at that time been prosecuted to final judgment. The levy was made at the date of the attachments, prior, in point of time, to the plaintiff's judgments. At the trial of one of the attachment suits a plea in abatement was interposed by the defendant, and upon issue joined, the verdict and judgment was for the plaintiffs. The defendant was then about to apply for a continuance in the other attachment suits, and it was mutually agreed that if he would not do so, but would waive his pleas in abatement in the other suits and permit judgment to go for plaintiffs, there should be a stay of execution for twelve months. This arrangement was accepted and deemed satisfactory between all parties. The plaintiff herein, who owned the judgments as...