Hombs v. Corbin

• Decision Date: 08 February 1886
• Citation: 20 Mo.App. 497
• Parties: GIBSON R. HOMBS, Respondent, v. EARLY CORBIN, Appellant.
• Court: Missouri Court of Appeals

20 Mo.App. 497

GIBSON R. HOMBS, Respondent,

v.EARLY CORBIN, Appellant.

Kansas City Court of Appeals, Missouri.

Feb. 8, 1886.

APPEAL from Adair Circuit Court, HON. ANDREW ELLISON, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action begun in the circuit court for the recovery of the possession of certain personal property, consisting of a miscellaneous stock of goods.

The defendant in his answer justified under two certain executions issued by a justice of the peace, by virtue of which he as constable “did seize and levy on said goods to satisfy said executions and costs, but at that time the sheriff of Adair county had said goods in his custody by reason of an attachment suit * * * and said seizure and levy made by defendant as constable was made subject to said attachment suit; that said attachment was dissolved and said goods were released by said sheriff, and this defendant then as said constable did proceed to sell said property for the purpose of satisfying said executions * * * and that before he could sell the same said goods were taken from him by writ of replevin in this suit.” The answer also alleged that the plaintiff and the defendant, in the executions, for the purpose of defrauding the latter's creditors, and especially the plaintiff's, in the executions conspired together, and made a pretended sale of the goods to the plaintiff. The reply admitted that the defendant was constable, and admitted also that the sheriff was in possession of the goods on April 19, 1883, by virtue of the writ of attachment, and denied all other new matter. The plaintiff introduced evidence tending to show that he purchased the property in dispute on April 23, 1883, and took possession of it on the same day; that Johnson, the defendant in the executions, gave him the key to the store and put him in possession.

The defendant offered the executions and the defendant's returns thereon in evidence. The offer was denied by the court. On each execution was the same original return and to each execution was attached the same supplemental return. The returns were as follows:

“CONSTABLE'S RETURN.

Served the within writ by levying on the goods and chattels of the defendant, as per exhibit marked and hereto annexed, subject, however, to an attachment in the hands of the sheriff of Adair county, Missouri, and I so declare to John Shaver, sheriff of Adair county, Missouri, on the nineteenth of April, 1883.

E. CORBIN, Constable.

SUPPLEMENTAL RETURN.

I, Early Corbin, constable of Benton township, in Adair county, Missouri, for a further and supplemental return to the command of this execution do say that on the nineteenth day of April, 1883, I, by virtue of this execution, did seize and levy upon the goods and chattels of the defendant, George W. Johnson, as set out and described in exhibit marked ‘A’ and attached to this execution, subject, however, to an attachment in favor of plaintiff against the defendant, George W. Johnson, that on which the sheriff of Adair county, Missouri, had seized and attached the goods described in said exhibit ‘A,’ and had said goods in his possession, that is, he had taken possession of said goods and locked them up in the store house of the defendant, and this relator, the constable aforesaid, could not get the entire control of said goods as against the said sheriff, but he done all he could to hold said goods continuously; that said attachment suit was dissolved and abated, and said goods were released from said attachment on the ____ day of April, 1883, and that the said constable then took full possession and control of said goods, on the ____ day of April, 1883, and was about to advertise said goods and sell them to satisfy this execution, and that on ____ day of April, 1883, said goods were taken from his possession by the sheriff of Adair county, Missouri, by virtue of a writ of replevin, wherein one Gibson Hombs is plaintiff, and this relator is defendant; and further relator says he has not found any other goods or chattels of defendant subject to levy and sale, under execution in Adair county, Missouri, and returns this writ nothing made thereon.

E. CORBIN, Constable.”

Costs of this execution as follows: For taking goods allowed by J. P., $7.50.

The court gave the following instruction:

“The jury are instructed that they must return a verdict for plaintiff in the following form, to-wit: We the jury find for the plaintiff and one cent damages for the unlawful taking and detention of the goods.”

J. M. DEFRANCE, P. F. GREENWOOD, for the appellant.

I. When fraud is charged in the pleadings, the failure to produce those as witnesses, who know all about the transaction, is always unfavorable to the party thus failing, and raises a presumption of fraud. Baldwin v. Whitcomb, 71 Mo. 568; Henderson v. Henderson, 55 Mo. 534; Cass Co. v. Green, 66 Mo. 498; Houts v. Shepherd, 79 Mo. 147.

II. The executions should have been admitted in evidence. They were liens on the goods and chattels found in Adair county (sect. 3017, Rev. Stat.), and being liens, Hombs could not recover, until he either showed himself an innocent purchaser, or that the goods were exempt by law, neither of which could he do under the pleadings. The burden was on him to show the goods were exempt, he claiming to be a transferee of Johnson. Stone v. Spencer, 77 Mo. 356.

III. The constable's return was evidence of every fact that the law requires of him to state in his return, and is conclusive as to the parties to the action or their privies. Murfree on Sheriffs, sect. 868, and cases cited; Reeves v. Reeves, 33 Mo. 28. It is not claimed that while the sheriff had actual possession of the goods under the attachment that the constable could take them, but that he had the right to seize them after the attachment was dissolved, as he did do. Patterson v. Stephens, 77 Mo. 329, and cases there cited.

IV. The constable should have been permitted to amend his return to conform to the facts, and the executions admitted in evidence. Murfree on Sheriffs, sect. 878.H. F. MILLAN, for the respondent.

I. The evidence showed a sale by Johnson to plaintiff, and his possession of the store and property when the constable came there. This is certainly a prima facie case of ownership. Smith v. Lydick, 42 Mo. 209.

II. To constitute a valid levy of an execution there must be an actual seizure and taking possession of the property by the officer. Rev. Stat., sect. 2357; Douglass v. Orr, 58 Mo. 73.

III. The property being in the hands of the sheriff under the attachment, was in custodia legis, and not subject to levy or sale under executions in the hands of the constable. Drake on Attachments, sect. 267; Freeman on Executions, sect. 135; Murfree on Sheriffs, sect. 532; Bates Co. Bk. v. Owen, 79 Mo. 429; State ex rel. v. Six, 80 Mo. 61.

IV. The constable could not have made a valid levy, without first notifying defendant of the property exempt from execution under sections 2342, 2343, and 2346 of the Revised Statutes.

V. The executions were not liens. (1) The property being in the custody of the law was not subject to execution, levy or sale. Sect. 3017, Rev. Stat. (2) Because at the time of the trial the executions had become dormant.

VI. The motion to amend the constable's return came too late. The court was not informed as to what amendment and constable did not offer to make any particular amendment. Allen v. Ranson, 44 Mo. 263; Simmons v. Carrier, 68 Mo. 416.

VII. Fraud will not be presumed. Henderson v. Henderson, 55 Mo. 555; Dallam v. Renshaw, 26 Mo. 533; Rumbold v. Parr, 51 Mo. 592; Chapman v. McIlwrath, 77 Mo. 38.

VIII. Exempt property may be sold unaffected by a lien. When sold, the purchaser would necessarily have the right to protect himself by showing it to be exempt. Buckley v. Wheeler, 52 Mich. 1; Emerson v. Baker, N. W. Rep. No. 5, December 5, 1885, page 503.

HALL, J.

The court refused to permit the defendant to introduce the executions offered in evidence by him and under the evidence instructed the jury to find for plaintiff. In determining whether or not the court should have so instructed the jury we shall consider the executions offered by the defendant as in evidence. The question then, is, was the plaintiff, under the evidence and the said executions, entitled to the immediate and exclusive possession of the property in controversy as against the defendant at the time of the institution of this suit? We shall determine this question upon the theory contended for by the plaintiff, which is that he was so entitled to the possession of the property, unless the defendant was entitled by virtue of the said executions to retain possession thereof. The question in this case is thus made to turn upon the action of the court in refusing to permit the defendant to introduce the executions in evidence.

To sustain that action by the trial court the plaintiff urges several reasons.

I.

That without a levy the defendant could not justify his possession of the property by means of the executions, and that a valid levy could not be made without an actual seizure of the property by the defendant, and that the returns made by the defendant upon the executions show that no such actual seizure was made.

As to the correctness of the proposition of law stated by the plaintiff under this point there is no question. Douglass v. Orr, 58 Mo. 573; Rev. Stat., sect. 2357; Newman v. Hook, 37 Mo. 207.

But when this suit was instituted the defendant did have possession of the property. Otherwise, this suit could not be maintained. The amended returns made by the defendant show that prior to the beginning of this suit the defendant had taken actual possession of the property. An actual seizure had been made by the defendant. Under the facts stated in the amended returns the plaintiff's position under this point is not tenable.

II.

That on the nineteenth day of April, 1883, at which time the levy was made, the property was in custodia legis, being...