Hamilton v. McClelland

• Decision Date: 28 February 1870
• Citation: 45 Mo. 424
• Parties: T. HAMILTON et al., Respondents, v. N. M. MCCLELLAND et al., Appellants.
• Court: Missouri Supreme Court

45 Mo. 424

T. HAMILTON et al., Respondents,

v.N. M. MCCLELLAND et al., Appellants.

Supreme Court of Missouri.

February Term, 1870.

Appeal from Fifth District Court.

Hall & Oliver, for appellants.

I. Gregg, being an innocent purchaser for value without notice, had a right to go on and acquire the legal title. (2 Lead. Cas. in Eq., part 1, p. 36 et seq.; Id. 57.)

II. A court of equity will not even assist a party who has fortified himself with the legal estate against a bona fide purchaser. (2 Lead. Cas. in Eq., part 1, p. 38; id. 81 et seq.)

III. The levy of the attachment in this case was not notice to Gregg of plaintiffs' claim. (18 Johns. 503; 13 Johns. 470.)

Dunn & Orrick, and H. M. & A. H. Vories, for respondents.

I. The attachment and its levy upon the land in controversy being made in conformity to law, created a lien on the land in favor of the respondents, which could not be divested by purchasers of the land, either innocent or otherwise, during the pendency of the suit. (Drake on Attach., §§ 224-242; 23 Mo. 94; 1 Litt. 302; 5 Dana, 76; 9 Dana, 18; 5 Moore, 73; Drake on Attach. 232.)

II. The pending of the suit in this case gave notice to the inhabitants of the State that this land was still claimed to belong

to McClelland, for the payment of his debts, and all persons are as much bound by this notice as if they had actual notice of the fraud. The doctrine of lis pendens is peculiarly applicable to this case. (1 Sto. Eq., §§ 405-6.)

BLISS, Judge, delivered the opinion of the court.

The plaintiffs presented their petition in equity to the Circuit Court of Carroll county to remove a cloud upon their title to land purchased under the following circumstances: T. Hamilton and the ancestor of his co-plaintiff, in March, 1862, sued out of the Ray Circuit Court a writ of attachment against defendant McClelland, attached the land in controversy, and in June, 1865, obtained judgment, sold and bid in the property. Previous to the levy in attachment it had been conveyed away by McClelland, and passed through two or three hands, when subsequent to the attachment it was purchased by defendant Gregg. It is clear from the evidence that he was a bona fide and innocent purchaser without actual notice and for a good consideration. The attachment issued from Ray county, and the land seized lies in Carroll county, and there was no record evidence in the latter county either of its issue or of any proceedings under it--there being then no law requiring an abstract of attachment proceedings to be filed with the county recorder. Before the purchase, Gregg made a thorough examination of the records of the proper county, and paid twelve hundred dollars of the purchase money down, and gave his notes for the balance. After some delay the deed was forwarded to his attorney, and when delivered to him he was informed by the attorney that he had just heard of these attachment proceedings, which was the first information he had received upon the subject. Under these circumstances defendant Gregg claims that he should be protected as an innocent purchaser, but the Circuit Court rendered a judgment against him canceling his deed, which judgment was affirmed in the...