First Nat. Bank of Attleboro v. Hughes
| Decision Date | 23 February 1881 |
| Parties | FIRST NATIONAL BANK OF ATTLEBORO, MASSACHUSETTS, Respondent, v. JOHN HUGHES ET AL., Appellants. |
| Court | Missouri Court of Appeals |
1. Where land is attached in a proceeding in which the defendant is a nonresident, is not served with process, and does not appear, and afterwards, in the same suit, a judgment is rendered for a sum which, upon the face of the record appears to be a greater sum than the amount mentioned in the writ of attachment, the judgment is not void for want of jurisdiction, and cannot be attacked in a collateral proceeding.
2. The statute law of another State can have no effect upon the devolution of title to real estate situated in this State.
3. A deed of assignment which recites that the assets of the assignor are three times greater than his liabilities, and which clothes the assignees with great discretionary power is voidable as tending to hinder, delay, and defraud creditors.
4. Where a deed, good inter partes, is made and delivered to a bona fide purchaser for value, before the date of the levy of an attachment upon the property conveyed, and is recorded before the sale and sheriff's deed to the purchaser, it will have precedence over the attachment.
5. The assignee in a deed of assignment for the benefit of creditors is not a mere volunteer. The assumption of the trust is a valuable consideration.
6. A notary public who has taken an acknowledgment may correct his certificate so as to make it show the facts, without having the parties again appear before him.
7. A deed of assignment which conveys, in general terms, all the property of the assignor, wherever situate, is not void for uncertainty.
8. The execution of a deed, good inter partes, which is subsequently impeached by creditors, does not disable the grantor from making a second valid deed of the same property to the same grantees.
9. Where illegal trusts are declared in a deed, and a valid deed of the same property and to the same grantees is subsequently made, the latter is in effect a rescission of the former.
10. Assignments for the benefit of creditors may be revoked or corrected at any time before the rights of the creditors have become fixed under them.
11. Where a deed of assignment, void in the State where made, but effectual to pass title to land situated in this State, was delivered in the State where made, prior to the levy of an attachment upon the land in this State, at the suit of a citizen of a third State, and recorded here prior to the issue of execution and sale under a judgment in the attachment, the title of the grantee in the deed of assignment is superior to that of the purchasers in the attachment.
Appeal from the St. Louis Circuit Court, ADAMS, J.
Reversed, and judgment.
NOBLE & ORRICK, for the appellants: The judgment on the attachment proceedings was void, because the property of appellants was attached to satisfy a debt of $1,056.65, and such attachment did not authorize a judgment for $5,322.38.-- Drake on Attach., sect. 5; Freeman v. Thompson, 53 Mo. 196; Cooper v. Reynolds, 10 Wall. 308; Voorhees v Bank, 10 Pet. 449; Williams v. Stewart, 3 Wis. 773; Beach v. Abbott, 6 Vt. 586; Porter v. Partee, 7 Humph. 168. The deeds from Sackett and others to appellants Gardner and others, of date March 21, 1879, and from George H. Sackett to appellants Gardner and others, of date March 22, 1879, conveyed the title to the property to them, and they now hold the same free of the lien of the attachment and judgment thereon in favor of respondent.-- Frost v. Wilson, 70 Mo. 664; Drake on Attach., sect. 234; Burrill on Assign. 538; Stevenson v. Pemberton, 1 Dall. 4; De Peyster v. Gould, 3 N.J.Eq. 481; Finch v. Winchester, 1 P. Wms. 277; Sappington v. Oeschli, 49 Mo. 244; Stillwell v. McDonald, 39 Mo. 282; Potter v. McDowell, 43 Mo. 93; Reed v. Ownby, 44 Mo. 204; Davis v. Owenby, 14 Mo. 170; Valentine v. Havener, 20 Mo. 133; Gates v. Labeaume, 19 Mo. 17.
J. B. WOODWARD and W. W. DEDRICK, for the respondent: The instruments upon which appellants claim title were not recorded in Rhode Island until after respondent's attachment. By the statute of Rhode Island, all conveyances are absolutely void until recorded. Therefore the assignments in question are subordinate to respondent's attachment lien.--Gen. Stats. R.I. 1872, pp. 349, 350, sect. 314; Richards v. Randolph, 5 Mason 115; Thurber v. Dwyer, 10 R.I. 357. The doctrine relied on by the appellants is based upon the ground of the superior equity of the bona fide purchaser or mortgagee. This equity does not exist in favor of a voluntary assignee.-- Davis v. Owenby, 14 Mo. 170; Valentine v. Havener, 20 Mo. 133; Stillwell v. McDonald, 39 Mo. 282; Potter v. McDowell, 43 Mo. 93; Reed v. Ownby, 44 Mo. 204; Aubuchon v. Bender, 44 Mo. 560; Sappington v. Oeschli, 49 Mo. 244. The acknowledgments are fatally defective, being made in the absence of the grantors, without reacknowledgments, two months after the instruments had been completed by delivery and recorded in Rhode Island.--Bouv. L. Dic. (14th ed.), tit. " " " " Acknowledgment; " O'Ferrall v. Simplot, 4 Iowa 381; Gen. Stats. Mo., p. 445, sects. 13, 14; p. 447, sect. 26; Rev. Stats., sects. 680, 681, 693. Although the said deed is fraudulent on its face, and voidable by creditors, it is valid and binding between the parties, and, as between said parties, operated to pass the title out of said assignors. It follows, therefore, that on the 21st and 22d of March, 1879, when said Sackett, Davis & Co. made the alleged conveyances under which appellants claim title, said assignors had no right, title, or interest in the property in question. The said pretended deeds fall for lack of subject-matter. They cannot be operative, as there is nothing for them to operate upon.-- Gates v. Andrews, 37 N.Y. 657; Porter v. Williams, 5 Seld. 142; Brownell v. Curtis, 10 Paige 210; Metcalf v. Van Brunt, 37 Barb. 621; Potter v. Williams, 12 How. Pr. 109; Dean v. Smith, 1 Mason 277. The plaintiff claims title by virtue of the sheriff's deed. The judgment cannot be attacked nor the validity of said deed questioned in a collateral proceeding.-- Hardin v. Lee, 51 Mo. 241; Freeman v. Thompson, 53 Mo. 183; Holland v. Adair, 55 Mo. 40; Rumfelt v. O'Brien, 57 Mo. 569; Herndon v. Hawkins, 65 Mo. 265. The sections of the statute cited by appellants relating to the duty of the sheriff to record an abstract of the attachment, etc., do not affect the regularity of the levy. These provisions are not essential to the levy, and their omission does not avoid it.-- Durant v. Hall, 38 Mo. 346; Lackey v. Seibert, 23 Mo. 85; Huxley v. Harrold, 62 Mo. 516.
On the twenty-ninth day of March, 1879, the plaintiff sued out an attachment in the Circuit Court of St. Louis against George H. Sackett, Thomas Davis, Laureston Towne, and George P. Tew, composing a partnership firm under the style of Sackett, Davis & Co., residing and doing business in Providence, Rhode Island. The petition was in the ordinary form, on a note for $5,000, with interest. The affidavit for attachment recited the demand set forth in the petition, stated that it amounted to $5,056.65, and stated that the defendants were non-residents of the State. The attachment, however, by some clerical error, no doubt, commanded the sheriff to attach so much of the lands and tenements, goods, chattels, moneys, etc., of the defendants as should be sufficient to secure the sum of $1,056.65. The sheriff levied the attachment upon the lot of land in controversy, and made return thereof, including a return of " not found" as to the defendants. Publication was made in conformity with the statute, the order of publication reciting a demand upon the promissory note set out in the petition, and stating the demand at the sum laid in the affidavit for attachment, namely, $5,056.65. The defendants not appearing, judgment was rendered against them by default on June 5, 1879, in the sum of $5,322.38. Under this judgment a special execution issued against the property so attached, under which the sheriff, after due advertisement, sold the property to the plaintiff for the sum of $10, he being the highest and best bidder. The plaintiff thereupon brought this suit in ejectment for possession. Judgment was rendered in the plaintiff's favor in the court below, and the defendants appeal.
1. The first question relates to the validity of the attachment. When the record in that suit was offered in evidence, the defendants objected to the same, for the reason that it appeared from the writ of attachment that by it the sheriff was commanded to attach property of the defendants for a debt not sued on. The court overruled this objection, and the defendants excepted.
This presents distinctly the question whether, where land is attached in a proceeding in which the defendant is a nonresident, is not served with process, and does not appear and afterwards, in the same suit, a judgment is rendered for a sum which, upon the face of the record, appears to be a greater sum than the amount mentioned in the writ of attachment with interest and costs, the judgment is void for want of jurisdiction, so that it can be attacked in a collateral proceeding. After a patient examination of this question, we answer it in the negative. We fully concede the positions taken by the appellants' counsel in his argument. We agree with him that the central fact which gives jurisdiction in an attachment suit is a levy upon property of the debtor under a valid writ of attachment. Hardin v. Lee, 51 Mo. 241; Freeman v. Thompson, 53 Mo. 183, 194; Holland v. Adair, 55 Mo. 40, 49; Cooper v. Reynolds, 10 Wall. 308, 319. But where a court thus acquires jurisdiction, it does not lose it by reason of any...
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