Hockaday v. LaWther

• Decision Date: 11 May 1885
• Citation: 17 Mo.App. 636
• Parties: EMILY HOCKADAY, Executrix of IRVINE O. HOCKADAY, Deceased, Respondent, v. HANS LAWTHER ET AL., Appellants.
• Court: Missouri Court of Appeals

17 Mo.App. 636

EMILY HOCKADAY, Executrix of IRVINE O. HOCKADAY, Deceased, Respondent,

v.HANS LAWTHER ET AL., Appellants.

Kansas City Court of Appeals, Missouri.

May 11, 1885.

APPEAL from the Callaway Circuit Court, HON. G. H. BURCKHARTT, Judge.

Reversed with directions.

Statement of case by the court.

In 1835, I. O. Hockaday, plaintiff's testator, sold lots 183, 184, 185, in I. O. Hockaday's addition to the town of Fulton to Thomas Ansel. At the time of the sale Ansel paid part of the purchase money, giving his note for the balance thereof, and received a title bond for the lots. On the 15th day of December, 1857, I. O. Hockaday executed and delivered to Ansel a deed in fee simple, conveying to him said lots, without reservation, the deed reciting that the purchase money had been paid in full. And on the same day Ansel made a new note for the balance of the purchase money then due, the note reciting that it was given for the amount of the first note remaining due and unpaid, which original note had been given for the unpaid purchase money of said lots. Ansel was in possession of said lots from 1835 to 1857, and from 1857 to 1866 in which last year he died.

In 1863, Ansel conveyed said lots, by mortgage, to Hans Lawther to secure the payment of certain notes due from Ansel to Lawther. In January, 1864, I. O. Hockaday died, leaving a will by which he appointed Emily Hockaday executrix. In March, 1864, she instituted suit, as such executrix, against Ansel and Hans Lawther for the purpose of enforcing against the said lots her testator's vendor's lien for the unpaid purchase money of said lots, covered by the note made in 1857. The petition averred among things that in 1863 Ansel conveyed the lots to Lawther for the purpose of securing the payment of certain debts due from Ansel to Lawther, that all of said debts were created and due prior to such conveyance to Lawther, and that at the time of the conveyance Lawther had full knowledge and notice of the existence of said lien for the said purchase money and that the same remained unpaid. “Lawther was duly served with process, and as shown by the record herein, the defendants in said case took leave to answer. But the defendants failing to answer judgment by default was rendered against them. The decree in said case is as follows: Now, at this day, comes the plaintiff aforesaid, by her attorney, and defendants having failed to answer according to law, plaintiff moves for judgment by default against them. It is, therefore, ordered by the court that an interlocutory judgment be entered against them. And defendants having failed to appear and show cause for setting aside the same, the court finds that the plaintiff is entitled to recover of the defendant, Thomas Ansel, the sum of $197.90. It is, therefore, ordered and adjudged by the court that the plaintiff have and recover of the said defendant, Thomas Ansel, the said sum of $196.94, with interest at the rate of ten per centum per annum from this date till paid, and all costs in this suit expended. And it further appearing to the court that this judgment is a subsisting lien upon the following real estate, to-wit: A lot or parcel of ground in Irvine O. Hockaday's addition to the town of Fulton, county of Callaway, state of Missouri, being lots 183, 184 and 185 in said addition, it is, therefore, ordered, adjudged and decreed by the court that all the right, title and interest in and to said lots 183, 184 and 185 of the parties aforesaid, plaintiff and defendants, be sold, and it is further ordered and adjudged by the court that a writ of special fieri facias issue against said lands, and that the same be ordered to be sold, or so much thereof as is necessary for the satisfaction of this judgment and costs.” No execution was issued in pursuance of said judgment. In 1866, the said Ansel died intestate, and one Zadok Hook was immediately thereafter appointed and duly qualified by the court of said county administrator of his estate. On the 27th of August, 1867, the executrix presented said judgment to said county court for allowance and classification against the estate of Thomas Ansel, which was then and there accordingly done, none of which has been paid.

In 1867, appellant Lawther, by proper proceedings in said circuit court, had the mortgage executed to him on said lots foreclosed, and the lots sold by sheriff. At which sale he became the purchaser of lots, and received from the sheriff a deed for the same. He forthwith took possession of said lots and has been in the continuous, open, notorious adverse possession of the same down to the present time, claiming to be the absolute owner. During the administration of said Ansel's estate the said Zadok Hook died, and F. Brandon was duly appointed his successor. This action was instituted in 1880, and is based upon the judgment hereinbefore set out. The amended petition on which the case was tried is as follows: “Plaintiff for amended petition states that, as executrix and devisee under the last will and testament of Irvine O. Hockaday, deceased, on the 10th day of April 1865, she recovered a judgment in the circuit court of Callaway county against Thomas Ansel for the sum of one hundred and ninety-six and 94-100 dollars for debt and twelve and 75-100 dollars for costs with ten per cent.interest perannum on said judgment from its rendition. That said sum of one hundred and ninety-six and 94-100 dollars was the unpaid purchase money on lots and * * * due plaintiff by virtue of the sale of said lots by Irvine O. Hockaday to the said Thomas Ansel and by reason thereof was declared by said judgment to be a subsisting lien on said lots, and the enforcement of said lien decreed by ordering the issue of a special fieri facias against the lots aforesaid. Plaintiff further states that since the rendition of said judgment, to-wit, on or about the month of September, 1886, the said Thomas Ansel departed this life intestate, and that Zadok Hook departed this life in the year * * * and now the administrator de bonis non of said estate * * * is F. Brandon.

Plaintiff further states that no part of said judgment or costs has ever been paid, but that the same with accrued interest remains unpaid. That the defendant Hans Lawther was a party defendant in the judgment rendered as aforesaid in the circuit court of Callaway county by reason of his interest in said lots subject to the vendor's lien of plaintiff and by its terms his interest as well as the interest of the said Ansel was decreed to be sold for the satisfaction of said judgment. Wherefore plaintiff asks that said judgment be revived against defendant Brandon as administrator de bonis non of the estate of Thomas Ansel; that judgment be rendered in her favor for the amount of the original judgment, interest and costs against the estate of Thomas Ansel; and that her lien upon said lots be declared by proper decree to still exist; and that the interest of the parties hereto, plaintiff and defendants, in and to said lots or so much thereof as may be necessary, be ordered to be sold for the payment and satisfaction of said judgment and all costs; and that a special fieri facias be ordered to issue against said lots directed to the sheriff of Callaway county for that purpose; and she further prays for all other relief.” To this petition Hans Lawther filed his separate answer which was first a general denial, and which then averred that he was the absolute owner of the lots in question, and that he purchased the same from Ansel, after I. O. Hockaday, plaintiff's testator, had made an absolute conveyance thereof to Ansel, with no knowledge of plaintiff's said claim of a lien, and that he was an innocent purchaser of said lots in good faith.

Defendant Brandon's answer was a general denial.

The record in this case shows that neither party demanded a jury, and that the cause was tried by the court. Defendant Lawther asked many instructions, or declarations of law, all but one of which were refused. Judgment was rendered by the circuit court in favor of plaintiff in accordance with the prayer of the petition.

Defendant Lawther alone appealed from said judgment.

ISAAC W. BOULWARE, for appellant Lawther.

I. The finding, judgment and decree were against, unwarranted, and unauthorized by the evidence. The only evidence offered by plaintiff was the papers, proceedings and judgment in the suit to enforce vendor's lien in 1865; this judgment was allowed and classified in the probate court in 1867 against estate of Ansel and said estate was in course of administration. The evidence introduced by defendant showed that plaintiff's testator in 1835 sold the lots to Ansel, giving bond for title, and in 1857 made him an absolute deed which acknowledged full payment of purchase money and was duly recorded; that Ansel took possession, made lasting and valuable improvements thereon, claiming as owner from 1835 down to his death in 1866; that 28 years after this purchase, in 1863, Ansel, by deed of mortgage for value, conveyed said lots to Lawther; that Lawther in 1867 foreclosed said mortgage and had Ansel's equity of redemption foreclosed and sold and he, Lawther, became the purchaser and took and has since held possession of lots.

II. In chancery cases where the decision of the court below is not supported by the evidence this court will not hesitate to interfere.-- Cornet v. Bertelsman, 61 Mo. 118; McLouraine v. Moore's Adm'r, 30 Mo. 462. The decree of 1865 did not show that Lawther had notice of vendor's lien in 1863, nor that L. had any interest in the lots; nor establish any issue as against Lawther on behalf of plaintiff to support the judgment of the court below in this case; the evidence of these facts of notice and purpose to defraud vendor of his lien must have been clear and conclusive.--2 Sugden's Vendors, 7th ed., top page 538; 1 Story, Eq. Juris., 6th ed., sect. 398; Wyatt v. Burrell, 19 Vesey 435; Smith's Appeal, 47 Pa. St. 128.

III. When...