Griggs v. Miller

• Decision Date: 09 September 1963
• Docket Number: No. 49268,No. 2,49268,2
• Citation: Griggs v. Miller, 374 S.W.2d 119 (Mo. 1963)
• Parties: Bill GRIGGS, Respondent, v. George C. MILLER, Trustee for the Estate of W. A. Brookshire, Appellant, Glen Powell, Respondent
• Court: Missouri Supreme Court

Page 119

374 S.W.2d 119

Bill GRIGGS, Respondent, v. George C. MILLER, Trustee for the Estate of W. A Brookshire, Appellant, Glen Powell, Respondent.

No. 49268.

Supreme Court of Missouri, Division No. 2.

Sept. 9, 1963.

On Motions to Modify for Rehearing or to Transfer to Court

En Banc Denied Oct. 7, 1963.

Supplemental Opinion Jan. 10, 1964.

William R. Clark, Columbia, for appellant.

Alexander & Wayland, Columbia, Attorneys at Law, for respondents.

WALTER H. BOHLING, Special Commissioner.

Bill Griggs, on January 19, 1961, sued W. A. Brookshire in ejectment for the possession of a 322 acre farm in Boone County, Missouri, and for damages for withholding possession. Plaintiff had purchased the farm for $20,600 on January 16, 1961, at a public sale under a general execution against defendant. Defendant filed an application to disqualify the official circuit judge and the Supreme Court ordered the temporary transfer of the Honorable Lawson Romjue, Judge of the Forty-first Judicial Circuit of Missouri, to hear the case. Defendant filed an answer and counterclaim. Defendant's answer was a general denial, and his counterclaim sought to set aside the sheriff's execution sale and deed. Glen Powell, who as Sheriff of Boone County conducted said sale and was grantor in said deed, was made a third-party defendant upon the application of defendant. The cause was considered and treated by the parties and the court 'as one of 'equitable cognizance." The court found the issues for the plaintiff and against the defendant on plaintiff's petition; for the plaintiff and the third-party defendant on defendant's counterclaim; and that plaintiff was entitled to $2,483.24 damages by reason of defendant's withholding of possession of said farm from January 18, 1961, to November 15, 1961, the date of said judgment and decree, and that plaintiff recover $250 per month from and after November 15, 1961, for so long as defendant withheld possession from plaintiff. Defendant Brookshire, after filing his notice of appeal, was incarcerated in the Missouri Penitentiary. Chapter 460 and Sec. 222.010. (Statutory references are to RSMo 1959 and V.A.M.S.). Thereafter, upon application of plaintiff Griggs, George C. Miller was appointed trustee of the Estate of W. A. Brookshire, and substituted as a party litigant for said Brookshire.

Defendant's contention that error was committed in overruling his motion to make plaintiff's petition in ejectment more definite and certain on the ground no cause of action was stated because, never having been in possession, plaintiff 'must allege the nature of his title and deed under which he claims ownership' is overruled. The existing law does not require that a plaintiff in ejectment should ever have been in possession of the premises. Fitzpatrick v. Garver, 253 Mo. 189, 193, 194, 161 S.W. 714[1, 2]. See Supreme Court Rules 89.02 (Sec. 524.040); 89.04 (Sec. 524.060); 89.05 (Sec. 524.070); 89.06 (Sec. 524.080), V.A.M.R. Plaintiff's petition conforms to said Rule 89.04, and allegations to the effect found in said petition have been held sufficient heretofore. Fitzpatrick case, supra; Bailey v. Williams, Mo., 326 S.W.2d 115, and citations. Defendant's brief does not point out the applicability of his citations (Tetherow v. Chambers, 74 Mo. 183; Holloway v. Holloway, 97 Mo. 628, 640, 641, 11 S.W. 233, 235) to the issue presented and we find them not determinative thereof.

Defendant's attempt to disqualify Judge Romjue, who was transferred to hear the case, was without merit. Civil Rule 51.03(b), effective June 1, 1961, provides that 'in no event shall more than one disqualification of judge be granted to either party.'

A suit to set aside a prior execution sale and sheriff's deed of defendant's 322 acre farm is reported under the style of W. A. Brookshire v. Glenn Powell, Ralph L. Alexander and Don C. Carter, Mo., 335 S.W.2d 176; said Powell being the sheriff conducting said sale and the other named defendants being the purchasers thereat.

Ray Crouch recovered a judgment against W. A. Brookshire, defendant, in the Circuit Court of Henry County, Missouri, on July 15, 1959, for $1,966.69. Said judgment was affirmed on December 5, 1960, in Crouch v. Brookshire, Mo.App., 341 S.W.2d 336. The right to an execution follows immediately upon the rendition of a judgment. State v. Haney, Mo., 277 S.W.2d 632, 55 A.L.R.2d 717; Rule 76.01. No supersedeas bond was given to stay an execution. Consult Rule 82.09; In re Craig, 130 Mo. 590, 593, 594, 32 S.W. 1121, 1122, 1123; Thompson v. Farmers' Exchange Bk., 333 Mo. 437, 62 S.W.2d 803, 812. A general execution was issued on said judgment to the Sheriff of Boone County on December 10, 1960. The Sheriff levied on defendant's 322 acre farm December 14, 1960, filed a notice of his levy in the office of the Recorder of Deeds of Boone County, and advertised and sold said real estate at public sale on January 16, 1961.

Dorothy Contestible, Administratrix of the Estate of Ralph Burton Collings, Deceased, recovered a judgment of $17,000 against William Albert Brookshire, defendant, in a wrongful death action in the Circuit Court of Audrain County, Missouri, on July 29, 1960. A general execution issued on said $17,000 judgment to the Sheriff of Boone County on December 23, 1960. This execution was mailed to Mrs. Contestible's attorneys in Columbia and was delivered to Sheriff Powell January 10, 1961. He levied upon defendant's 322 acres under said execution on January 11, 1961.

Defendant contends it was error to sell his 322 acre farm without attempting to make the judgment debt, interest and costs out of a portion of said farm.

Our Civil Rules contemplate that a judgment debtor is to be afforded reasonable protection in levying on and selling his property under execution. Civil Rule 76.21 (Sec. 513.095) provides in effect that if a judgment debtor gives the officer a list of his property sufficient to satisfy the execution, 'the officer shall levy upon the property, and no other, if in his opinion it is sufficient; if not, then upon such additional property as shall be sufficient.'

Civil Rule 76.24 (Sec. 513.210) provides: 'When an execution shall be levied upon real estate, the officer levying the same shall divide such property, if susceptible of division, and sell so much thereof as will be sufficient to satisfy such execution, unless the debtor in the execution shall desire the whole of any tract or lot of land to be sold together, in which case it shall be sold accordingly.'

And Rule 76.25 (Sec. 513.100) provides: 'The person whose goods, chattels and real estate are taken in execution may elect what part thereof shall be first sold; and if he shall deliver to the officer having charge thereof a statement, in writing, of such election, three days before the day appointed, for the sale, stating specifically what goods, chattels and real estate he desires to be first sold, and so on, until the execution be satisfied, the officer shall proceed according to such election, until sufficient money shall be made to satisfy the amount in the execution specified and costs.'

It is stated in 21 Am.Jur., Execution, Sec. 380, that an execution is not 'leviable upon all the debtor's property, but only upon sufficient property owned by the debtor within the jurisdiction to satisfy the debt, interest, and costs'; and, while the officer is left to his own judgment, he 'must exercise the care and discretion which a reasonably prudent man would exercise under like conditions and circumstances.' And, with respect to the property to be sold when more than enough to satisfy the debt is seized, it is stated in Sec. 384: 'The general rule is that the execution officer may make a division of the property, if that is practicable, and sell only so much of it as is necessary to satisfy the debt.' See Gordon v. Hickman, 96 Mo. 350, 356, 9 S.W. 920, 921, 922; 33 C.J.S. Executions Sec. 107 b. A failure to divide real estate and sell only enough to satisfy the execution was considered an abuse of discretion in State ex rel. Koeln v. Sanders, 326 Mo. 76, 30 S.W.2d 986, and a constructive fraud in Queen City Inv. Co. v. Kreider, Mo., 31 S.W.2d 1002, 1005.

As stated by the trial court, plaintiff's testimony placed the value of defendant's 322 acres at $50,000 while defendant contended it was much higher, approximately $90,000.

The parties agree that the following liens appeared unreleased of record against defendant's 322 acre farm: (1) $10,000 deed of trust, Federal Land Bank of St. Louis, Sixth District. (2) $15,000 deed of trust, Ralph L. Alexander, Trustee, and 'Holder of the Note' named as third party. (3) $3,516.46 Federal Tax lien under Internal Revenue Laws. (4) $3,606.43 County and State Tax lien.

The $15,000 note was payable to brarer ('Holder of the Note'), and was pledged with other collateral to secure defendant's $33,800 note of June 9, 1949, to the Boone County National Bank. The bank never owned the $15,000 note. The $33,800 note was paid in 1953, and the $15,000 note was delivered to defendant without marking it paid. Mr. Alexander, the named trustee, testified he knew the history of the note so far as the bank was concerned.

The $10,000 note was purchased by Mr. Alexander in March, 1960, when the holder of the note was threatening to foreclose. He did not want another to get defendant's farm. He advertised the farm for sale intending to buy it at the foreclosure. Defendant came in and paid the note, which was endorsed and delivered to defendant.

It was stipulated by the attorney for plaintiff and third party defendant that a witness connected with the Internal Revenue Service, if present, would testify that the $3,516.46 Federal Tax lien had been discharged about four years prior to the trial; and also 'I will stipulate the record will show that the matter has been paid.'

It is not disputed that the County and State Tax lien of $3,606.43 remained in effect. We understand...