Griswold v. Johnson
| Decision Date | 24 May 1886 |
| Citation | 22 Mo.App. 466 |
| Parties | S. B. GRISWOLD, Appellant, v. P. R. JOHNSON ET AL., Respondents. |
| Court | Kansas Court of Appeals |
APPEAL from Jasper Circuit Court, HON. M. G. MCGREGOR, Judge.
Reversed and remanded.
Statement of case by the court.
This is a case commenced by a bill in equity in the circuit court of Jasper county, Missouri, the object of which is to enforce the lien of a judgment obtained by appellant against one Frank Campbell in his lifetime, said Campbell having died after obtaining the judgment, and having, prior to his death conveyed to respondent Johnson the land, against which the lien is sought to be enforced, and at his death leaving no property of any kind. The conveyance to respondent Johnson and the death of Campbell have both taken place within ten days after the time plaintiff acquired his judgment.
The following is the entire evidence in the case:
For plaintiff:
1. A warranty deed from Charles J. Fogerberg and wife to Frank Campbell for lot thirty-eight, Waco, Jasper county, Missouri of date June--, 1882, filed for record September 20, 1882. Properly acknowledged " which deed recites that it is made in satisfaction of deed to Frank Campbliss of date February 16, 1882." And plaintiff admitted that it was made to correct deed to Frank Campbliss February 16, 1882.
2. A warranty deed from Franklin Campbell and wife to Peter R Johnson, of date December 27, 1882, conveying lot thirty-eight, Waco, filed for record December 28, 1882, properly acknowledged.
3. A warranty deed from Peter R. Johnson and wife to Henry W. Davidson, for lot thirty-eight, Waco. Properly acknowledged, of date April 9, 1883, filed for record April 16, 1883.
4. A transcript judgment in favor of plaintiff against Frank Campbell, rendered December 16, 1882, for $117.82, and costs before a justice of the peace, the transcript of which was filed in the office of the circuit clerk, December 21, 1882.
5. Justin Williams, book-keeper of plaintiff, testified that the account upon which plaintiff obtained judgment was all contracted prior to March 23, 1882, except one item of $30.48, which was contracted March 27, 1882.
6. It was then admitted by defendant that Frank Campbell died about January 1, 1883, leaving no property of any kind real or personal.
For defendants:
1. An instrument of writing in form of warranty deed from Charles J. Fogerberg and wife to Frank Campbliss for lot thirty-eight, Waco, Missouri, of date February 16, 1882, filed for record March 23, 1882, in which instrument there was no seal or scroll to grantors' signatures.
2. It was then admitted by plaintiff that, prior to his death, said Frank Campbell had erected a frame building on said lot, and fenced same during the summer of 1882, and lived with his wife in the back end of the building, and sold groceries in the front end of it, and was living on said lot, at the time of contracting the debt sued for, with his family, and the lot did not exceed in amount and value the statutory homestead.
It is admitted in this case that the deed from Charles J. Fogerberg and wife to Frank Campbliss, dated February 16, 1882, and filed for record March 23, 1882, was in fact made and delivered to Frank Campbell, and that " Campbliss" was a clerical error in drawing the deed. That Frank Campbell went into possession of the lot in controversy under said deed, was occupying it with his family March 23, 1882, and prior thereto, and that he continued so to occupy it till he conveyed it to defendant, Peter R. Johnson.
On the evidence the court found the issues for defendant and dismissed plaintiff's bill, to which plaintiff excepted and in due time filed his motion to set aside and for new trial, which the court overruled, to which plaintiff excepted, and brings the case to this court on appeal.
MCREYNOLDS & HALLIBURTON, for the appellant.
I. The lien of the judgment did not expire with the death of the judgment debtor. Sect. 2743, Rev. Stat.; Miller v. Doan, 19 Mo. 650. And the lien may be revived against the purchaser of the land, though his grantor be dead. Andrews v. Buckbee, 77 Mo. 428.
II. Plaintiff has no legal remedy--the judgment debtor being dead no execution can issue. Sects. 2743, 2744, Rev. Stat. Plaintiff cannot reach the land through the probate court, the judgment debtor having conveyed it in his lifetime to defendant. George v. Williamson, 26 Mo. 190. And an administration and allowance of claim would be a useless expense, as the judgment debtor left no property of any kind; and an administrator could take no action as to this land.
III. Equity will not suffer a right to be without a remedy; and will make the remedy, when applied, a complete one. Bisp. Eq. (2 Ed.) sect. 37-8. It will not only enforce liens, but may remove them when they come in conflict with superior equity. Young v. Cason, 48 Mo. 262. Plaintiff in a judgment at law can go into equity to enforce his lien against the property of defendant, if he has exhausted his legal remedies. Merry v. Freeman, 44 Mo. 518; Allmett v. Leper, 48 Mo. 319; Stratimore v. Clark, 70 Mo. 471; Carr v. Parker, 10 Mo.App. 304; Williams v. Mitchner, 3 Stockton (N. J.) 520.
IV. Judgment debtor did not acquire a homestead until September 20, 1882. The earlier conveyance to him was not a deed. Sect. 2695, Rev. Stat.; Thompson on Homesteads, sects. 300, 304; sects. 668-691, Rev. Stat.; Bishop Cont., sects. 530, 560; Long v. Stapp, 49 Mo. 509.
V. The court of equity having charge of the cause will do equity between the parties, and enforce the claim of plaintiff against the property in hands of purchaser. Reeg v. Burnham, 20 N.W. 715.
A. L. THOMAS, for the respondents.
I. The judgment debtor acquired a homestead on twenty-third of March, 1882, the date of filing his deed for record. The statute does not require that the conveyance shall be a perfect conveyance; nor that it shall be " a deed," in a technical sense. All that is required is, the filing of the deed, by which the title, whether legal or equitable, is acquired. Sect. 2695, Rev. Stat.
II. A part of plaintiff's account having been contracted after the filing of the deed for record (twenty-third of March, 1882), and plaintiff having taken judgment for the whole debt, the date of contracting the whole debt is the date of the last item in the account. Thompson on Homesteads, sect. 295; Miller v. Miller, 39 Am. Dec. 598. Using part of the dwelling for a store would not forfeit the homestead right. Thompson on Homesteads, sect. 138.
III. Judgment liens are statutory and can be enforced only according to the statute. Mitchell v. Wood, 47 Miss. 231; Warner v. Veutch, 2 Mo.App. 459; Story on Eq. Jur. (10 Ed.) sects. 14, 15; Pohlman v. Shamway, 24 Ill. 127; Miami Bank v. Turpin, 3 Ohio 517.
It will be observed, from the statement in this cause, that the judgment, upon which this equitable action is based, was against one Frank Campbell, who received from one Fogerberg and wife an instrument purporting to be a deed to the property now sought to be charged in the hands of defendant. That this instrument had no seal affixed thereto, and that, instead of being made to Campbell as grantee, it was, by clerical error, made to Campbliss.
This instrument was dated February 16, 1882, and was filed for record March 23, 1882. That on June --, 1882, Fogerberg, for the purpose of " satisfaction of the deed to Frank Campbliss," made a proper deed, duly sealed and acknowledged, to Campbell, which was recorded September 20, 1882.
That all the debt, except one item, for which the judgment was rendered, existed prior to March 23, 1882, the time when, what is claimed as Campbell's first deed, was recorded.
That the...
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