Hammond v. Horton
| Decision Date | 22 January 1897 |
| Citation | 37 S.W. 825,137 Mo. 151 |
| Parties | Hammond et al., Appellants, v. Horton et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Affirmed.
George F. Edmunds, D. T. Jewett, and Henry H. Dennison for appellants.
(1) Relfe and Chew had no right to redeem from the sale to Simpson under two years and six months after the sale to Simpson, by the terms of the statute, therefore their sale in October, 1823, was void, as Hammond had the exclusive right to redeem for two years and six months after August 24, 1821. (2) The law only allowed one sale on execution, and all other creditors who sought must redeem from that sale and could not acquire any right by a sale on execution at any time within three years. (3) The repeal of the law before the sale by Relfe and Chew did not affect the question or give new rights to creditors to sell the right to redeem, as the repealing act had a clause protecting all rights acquired under that act. The sale by Relfe and Chew did not purport to sell a right to redeem from the sale to Simpson, and was therefore void for uncertainty, as well as for other reasons. (4) The sale to Relfe and Chew, if it could take anything, could only take a right to have a sheriff's deed, under and by virtue of the sale to Simpson, as the law required a sheriff's deed to complete that sale, and they never got that, therefore got nothing. (5) The sale to Relfe and Chew only covered two hundred and four acres, not the two hundred and forty acres sold to Simpson, and they could not redeem an undivided part of the land sold to Simpson -- it must certainly be the whole or none. They could not compel Simpson to give up to them an undivided fraction of what he had bought and leave a part unredeemed, and the sale was therefore void for that reason. (6) It was also void as a redemption from Simpson, because the return of the sheriff on the execution in favor of Relfe and Chew shows that it was not intended as a redemption from Simpson, because the return on the execution shows that the hundred dollars which was bid for the land at the sale to Relfe and Chew was indorsed on their execution, and therefore did not go to Simpson. (7) Relfe and Chew could not, at sheriff's sale, October 8 1823, buy Hammond's equitable right to a patent, because that right was then in Simpson, and could not be taken from him except by redemption and payment of his claim. (8) An execution sale can take only what the debtor has at the time of sale and must take under the law, and if the sale takes nothing at the time of sale, it takes no after-acquired rights. White v. Davis, 50 Mo. 333; Mann v Best, 62 Mo. 491. (9) Neither the sheriff's sale to Simpson, nor the sheriff's sale to Relfe and Chew, passed any title, either equitable or otherwise, to anyone, as, at the time of said sales, Hammond had no title, legal or equitable, to said land, as no title of any kind to said land had, at that time, passed out of the United States to Easton or anyone else, and did not pass until January, 1833, when the said survey, made by the surveyor-general, was returned to the recorder of land titles, and was approved by him and recorded; then, and not till then, the equitable right to said land passed to Easton and from him to Hammond, by virtue of said Easton's warranty deed to Hammond, in 1823. Bagnell v. Broderick, 13 Pet. 436; Barry v Gamble, 3 How. 60; Hale v. Gaines, 22 How. 159; Rector v. Ashley, 6 Wall. 142; Gibson v. Chouteau, 13 Wall. 92; McKay v. Easton, 19 Wall. 633; Hot Springs Cases, 5 Otto, 712.
James M. Lewis for respondents.
(1) The sale of the land under execution against Hammond in 1823, carried the whole title, and all of the title, which Hammond ever had, was fully vested in the defendants when this suit was begun. This question has been adjudicated so often, that there is no further room for argument on the subject. Hammond v. Johnston, 93 Mo. 198; Hammond v. Gordon, 93 Mo. 223; Block v. Morrison, 112 Mo. 346; Hammond v. Johnston, 142 U.S. 73; Hammond v. Ins. Co. and Hammond v. Gordon (consolidated), 150 U.S. 633; Kingman v. Holthaus, 59 F. (2) Both parties claim under a common source of title. As the United States court well said, for nearly fifty years after Hammond had disclaimed all title to the land, the defendants and those through whom they claim have been in the undisputed possession of the land under claim of title. "In such a case, if there be a single weapon in the whole armory of justice to beat off assaults upon such occupants it ought to be employed in a court of justice." The opinion rendered by the trial court shows, wherever the question has been tried it has been held that the plaintiffs have no standing, for the obvious reason that both plaintiffs and defendants claiming under the same source of title, the doctrine of title by relation vested in the purchasers at the sale under execution against Hammond his then equitable but vendible interest, which on becoming afterward a legal title from the United States, inured to the benefit of those purchasers and their grantees. Massey v. Papin, 24 How. 362; Landis v. Brant, 10 How. 348; Shepley v. Cowen, 91 U.S. 337, 338; Callahan v. Davis, 90 Mo. 78. (3) The act of June 28, 1821, is without bearing on the issues in this case. (4) The claim that the sheriff's deed to Relfe and Chew is void for uncertainty is without merit.
Collins & Jamison for respondents.
(1) With the single exception of such matters as pertain to the sheriff's sale to Simpson, the supreme court of Missouri and the supreme court of the United States have considered and forever settled all points made in the appellants' brief. Hammond v. Johnston, 93 Mo. 198; Hammond v. Gordon, 93 Mo. 223; Block v. Morrison, 112 Mo. 346; Hammond v. Johnston, 142 U.S. 73; Hammond v. Conn. L. Ins. Co. and Hammond v. Gordon (consolidated), 150 U.S. 633. (2) An equitable interest in real estate can be seized and sold on execution. Brandt v. Robertson, 16 Mo. 149; Hammond v. Johnston, 93 Mo. 198. (3) If the sheriff's sale to Robert Simpson was a valid sale, and operated to pass Samuel Hammond's title, then plaintiffs were not entitled to recover in this action, and the title is outstanding; nay, more, Simpson conveyed such title to Relfe and Chew, and by mesne conveyances same is now vested in the defendants. (4) Under the laws of Missouri then in force, Samuel Hammond had the right within two and one half years from the date of the sale by the sheriff to Simpson to redeem the land sold, and any creditor of Samuel Hammond had the right within three years from the date of the sale by sheriff to Simpson to redeem said land. (5) It was competent and legal for the sheriff, acting under the execution issued on the judgment dated May 22, 1823, to seize and sell Samuel Hammond's equitable right to redeem from the sale by sheriff to Simpson. (6) At the date of the levy and sale by sheriff to Relfe and Chew, the act of the legislature of Missouri, which gave to Hammond and his creditors the right to redeem under the Simpson sale, had been repealed, and after such repeal the creditors of Samuel Hammond had the unquestionable right to enforce their judgments against him. 1 Territorial Laws of Missouri, p. 862. (7) By virtue of the sheriff's sale on October 8, 1823, Relfe and Chew acquired all of Samuel Hammond's right, title, and interest in and to the land in controversy, including his right to redeem same from the sale by sheriff to Robert Simpson, and therefore the quitclaim deed from Simpson to Relfe and Chew, dated January 20, 1824, must be regarded as a redemption from that sale, and whatever title Simpson acquired is now vested in the defendants.
John B. Henderson also for respondents.
OPINION
This suit is ejectment to recover a small tract of land being a part of a tract of four hundred and eighty acres located under a New Madrid certificate (number 161), and known as United States survey number 2500.
The New Madrid claim was located by Rufus Easton, as assignee of Joseph Hunot, in June, 1818. The patent from the United States was issued to said Hunot or his legal representatives in 1859.
In September, 1818, Easton as assignee of Hunot, made a bond for title to Samuel Hammond and James J. Wilkerson. On the eighth day of October, 1823, the land was sold by the sheriff to Relfe and Chew under an execution on a judgment, in their favor and against Hammond, dated in May, 1823. Defendants claim under a deed of the sheriff made in pursuance of this sale. Plaintiffs claim title under a warranty deed from Easton to Hammond dated September 29, 1823.
The title, as thus briefly detailed, has been passed upon in former appeals in this and other cases. Hammond v. Johnston, 93 Mo. 198, 6 S.W. 83; Hammond v. Gordon, 93 Mo. 223, 6 S.W. 93; Block v. Morrison, 112 Mo. 343, 20 S.W. 340. A full statement of the facts can be found by an examination of these cases. Under these decisions the title was adjudged to be in defendants.
On a retrial of this case the following new facts were developed Three judgments were rendered against Hammond, two of them May 4, 1820, and the other April 26, 1821. ...
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