Frothingham v. Stacker

• Decision Date: 31 October 1847
• Citation: 11 Mo. 77
• Parties: FROTHINGHAM ET AL. v. STACKER.
• Court: Missouri Supreme Court

11 Mo. 77

FROTHINGHAM ET AL.

v.STACKER.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

GOODE, for Appellants.

SPALDING, for Appellee.

SCOTT, J.

This was a bill in chancery for an injunction and relief. The material facts of the case are as follows: In June, 1835, Charles Collins, by deed for a full and valuable consideration, conveyed to W. Warrance three lots in St. Louis. Warrance entered and continued in possession until 1836, when he conveyed to J. Stacker, the complainant in the bill, for a full and valuable consideration. This deed was dnly acknowledged and recorded. Stacker entered on the lots, which were situated on Broadway--made valuable improvements thereon, and continued in possession until the first of June, 1845, when the deed from C. Collins to W. Warrance was recorded. In December, 1836, S. Griswold made his promissory note to Charles Collins for $1,250, payable two years after date, which was indorsed by Collins, and afterwards passed into the hands of G. Frothingham, a defendant in the bill. In July, 1839, suit was brought on the note, in the name of Ellis against Collins, and in December, 1842, judgment was rendered against him. Execution was issued on this judgment on the 9th July, 1845. Frothingham, Ellis, and Collins, at the time the above mentioned debt was contracted, were, and continued residents of St. Louis, up to the time of filing the bill. The bill prayed for an injunction to restrain the sheriff from proceeding under the execution; an injunction was granted, and on the hearing, it was perpetuated, from which decree an appeal was taken to this court.

This case does not differ in principle from those of Hill v. Paul, 8 Mo. R., and Reed v. Austin's Heirs, 9 Mo. R. 722.^(a) The principle of those cases is, that the lien of a judgment will prevail over a prior unrecorded deed, and that may be regarded as the settled law of this court. When, and under what circumstances, a creditor may be affected with notice, so as to defeat his priority, it is not necessary now to determine, as there is no evidence in this case of any actual notice to the creditor of the prior right of the complainant. It is strange, that in the argument of questions arising under our law for the recording of deeds, that constant reference should be made to the English statute, and to the decisions that have been made thereon, and to the decisions of courts swayed by a similar statute, not for illustration, but as being in...