Howell v. Sherwood

• Citation: 147 S.W. 810,242 Mo. 513
• Parties: H. E. HOWELL, JOHN A. PATTERSON, ORIN PATTERSON and B. S. EDMONSON v. THOMAS A. SHERWOOD, Appellant
• Decision Date: 20 May 1912
• Court: United States State Supreme Court of Missouri

147 S.W. 810

242 Mo. 513

H. E. HOWELL, JOHN A. PATTERSON, ORIN PATTERSON and B. S. EDMONSON v. THOMAS A. SHERWOOD, Appellant

Supreme Court of Missouri

May 20, 1912

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Appeal from Greene Circuit Court. -- Hon. Alfred Page, Judge.

Reversed and remanded (with directions).

Sherwood & Young, T. J. Delaney and George B. Webster for appellant.

(1) The so-called deed from W. D. Fulbright to D. L. Fulbright is void for lack of operative words of conveyance. Becker v Stroeher, 167 Mo. 306; McGarrigan v. Asylum, 145 Cal. 694; Brettman v. Fischer, 74 N. E. (Ill.) 777; Riech v. Dyer, 86 N.Y.S. 544. (2) The deed from D. L. Fulbright to Carleton is either totally void for uncertainty of description or it conveys but a fractional part of the land sued for. The sheriff's deed attempting to convey Carleton's interest is absolutely void because of lack of jurisdiction in the court to render judgment in the so-called garnishment proceeding against Carleton. Howell v. Sherwood, 213 Mo. 565. It is also void because it fails to convey any land. Evans v. Ashley, 8 Mo 177; Nelson v. Broadhack, 44 Mo. 496; Tally v Schalitz, 180 Mo. 231; Brewster on Conveyances, secs. 71 and 72. Moreover, its invalidity having been judicially declared on the former trial, that is an end of this contention. That the action of this court on its former hearing of this cause is conclusive of the issues presented by this record is demonstrated by the rule announced in: May v. Crawford, 150 Mo. 525; Hayward v. Smith, 187 Mo. 476; Taussig v. Railroad, 186 Mo. 281; Brummell v. Harris, 162 Mo. 402; Bealey v. Smith, 158 Mo. 522; Potter v. Adams, 143 Mo. 665; Sandford v. Herron, 161 Mo. 186; Gracey v. St. Louis, 221 Mo. 5. Lack of jurisdiction may be shown by secondary evidence of the contents of the lost files for the purpose of impeaching the judgment. Eaton v. Hall, 5 Met. (Mass.) 287; Parry v. Walser, 57 Mo. 172; Foulk v. Colburn, 48 Mo. 230; Ravenscroft v. Giboney, 2 Mo. 1; McClanahan v. West, 100 Mo. 321; Davis v. Montgomery, 205 Mo. 271; Land Co. v. Mining Co., 187 Mo. 434; Graham v. O'Fallen, 3 Mo. 507; Burnett v. McCluey, 78 Mo. 689; Howard v. Thornton, 50 Mo. 292. It is also void because the execution is an alias or renewed execution and fails to recite the issue of the former execution, the levies thereunder and the amount realized therefrom. Laws 1863, p 20; Maupin v. Emmons, 47 Mo. 308; Wood v. Augustine, 61 Mo. 50. It is also void because issued for costs in addition to the judgment while the judgment did not carry costs. Under the statute then in force a judgment in garnishment proceedings did not carry costs unless specifically so directed therein. Maloney v. Ass'n, 57 Mo.App. 384; R. S. 1855, chap. 12, secs. 70 and 75, and chap. 40, secs. 6 and 32. It is also void because satisfied by the sale under the first execution. It is also void because made returnable to a day in the past instead of to one in the future, the execution being issued on the 7th day of December, 1863, and made returnable to the January term, 1863. The final judgment is also void on account of its failure to require the garnishee to give bond or pay the money found to be due from him to the debtor into court. Walkeen v. Johnston, 130 Mo.App. 325. (4) The deed from S. H. Julian to H. E. Howell is void. Because the former public administrator had no authority to execute the same as such administrator. Because there was never any lawful administration upon the estate of Lindenbower. Because the court acquired no jurisdiction to make order of sale of the real estate of Lindenbower, the proof of publication of notice to creditors and others not having been filed until after order of sale made, and it appearing from such proof that the term of office of Barker, whose jurat is attached to the order of publication, had expired. Fletcher v. Kite, 66 Mo. 285; 2 Chitty's Gen. Prac., 159. Because the order of sale under which renewal order was made had become functus officio. Because the description in the deed is too vague and indefinite to carry title. (5) The judgment in this case is erroneous upon its face, and void for failure to describe the land awarded to plaintiffs. Brummel v. Harris, 148 Mo. 430; Benne v. Miller, 149 Mo. 228. (6) The act of the Legislature under which the trial judge officiated is void. State v. Hill, 147 Mo. 63. (7) The court erred in excluding from the consideration of the jury the letter from Carleton to Sherwood written at the time of the transaction relating to the purchase of the Mt. Vernon St. property. It also erred in excluding from the consideration of the jury the returns contained on writs of attachment and executions which were issued and returned by the sheriff of Greene county within a short time prior and subsequent to the return of the execution under which plaintiff claims title. These returns were offered for the purpose of showing, in corroboration of the testimony of Sherwood, that the sheriff had at this period of time adopted a form of return which failed to comply with the mandatory provisions of the statute governing such returns. Blodgett v. Shaeffer, 94 Mo. 670; Herman v. Lacker, 99 Mo.App. 300; State v. Taylor, 126 Mo. 538; Cramer v. Hurt, 154 Mo. 119; Matthias v. O'Neil, 94 Mo. 529; Payne v. Railroad, 129 Mo. 420; Broussard v. Bernard, 7 La. 216; Reynolds' Stephenson on Evidence, p. 24, art. 13; Greenleaf on Evidence, sec. 40.

George Pepperdine and Patterson & Patterson for respondents.

(1) An instrument that acknowledges the receipt of sixteen hundred dollars to pay for a piece of land, which says that the payee shall have and hold it, he and his heirs forever, which contains a warranty of title on the part of the man securing the money and is signed, sealed and acknowledged by him would seem to be a very lively creature of some kind, and as it is a link in the chain of appellant's title as well as that of respondents, it should have sufficient vitality to support the legal chain in this suit, considering that it was executed well onto three quarters of a century ago. Whatever may have been the rule erstwhile, the modern rule of construction as applied to a deed is to ascertain the intention of the parties thereto, and especially the intention of the grantor. And if it appear from the instrument as a whole and the language therein that the grantor intended to part with his estate and the grantee to secure the same in presenti then the instrument is a deed, and conveys legal title. Linville v. Greer, 165 Mo. 380; McKinney v. Settler, 31 Mo. 541; Devlin on Deeds (2 Ed.), secs. 174, 211; Long v. Wagoner, 47 Mo. 178; Jennings v. Brizeadine, 44 Mo. 335; Brunsmann v. Carroll, 52 Mo. 313; Fosburgh v. Rogers, 114 Mo. 134; Peter v. Byrne, 175 Mo. 233; Hunter v. Patterson, 144 Mo. 310; Roberts v. McIntire, 84 Me. 362; Anglade v. St. Avit, 67 Mo. 435. (2) In ejectment where both parties claim through a common source of title, it is unnecessary to go back of that title. It is sufficient for the plaintiff to deraign his title from the common sources. Holland v. Adair, 55 Mo. 40; Butcher v. Rogers, 60 Mo. 138; Miller v. Hardin, 64 Mo. 545; Smith v. Lindsey, 89 Mo. 76; Grandy v. Casey, 93 Mo. 595; Huff v. Morton, 94 Mo. 405; Holland v. Adair, 55 Mo. 40; Bank v. Harrison, 39 Mo. 433; Cummins v. Powell, 97 Mo. 524; Choquette v. Barada, 33 Mo. 249. A necessary corrollary of the rule under consideration is that where there is a common source of title agreed to, assumed, or shown to exist and relied on, then irregularities in conveyances prior to the common source, become weaknesses common to both litigants and hence immaterial. Ebersole v. Rankin, 102 Mo. 498; Machine Works v. Bowers, 200 Mo. 234; Sloan v. Chitwood, 217 Mo. 465. (3) The first contention of a lack of jurisdiction defeating the deed from the sheriff to Jamison is answered by the verdict of the jury declaring the return to have been regular. A sheriff's deed set out fully certain judgments, and also set out certain executions, but failed to couple the executions with the judgments, but the names of the parties, and the amounts as set out were identical. Held that it was inferable that the executions were on these judgments and that such omissions are not fatal to the deed, inasmuch as they could mislead no one. Wack v. Stevenson, 54 Mo. 481; Gaines v. Fender, 82 Mo. 507. (4) The substance of appellant's next contention is that, the finding of facts being against the respondents and the judgment for respondents in the first trial of this case, the finding of facts is conclusive on respondents. This is not the law. Where the judgment is wholly in respondent's favor he is not concluded by any finding of facts made by the trial court to which he did not except. Egger v. Egger, 225 Mo. 118; Patterson v. Patterson, 200 Mo. 335. (5) Appellant's next contention is "lack of jurisdiction may be shown by secondary evidence of the contents of the lost files for the purpose of impeaching a judgment." An inspection of the instructions given by the trial court will show this court that this case was tried upon the above theory. The only question pertinent to this matter, was a question of fact, was the question as to whether the testimony of an interested witness, a defendant in an ejectment suit testifying as to the contents of a lost return of service, which he last saw in 1866 or 1867, and which he did not act on for more than thirty years, was of sufficient probative force to destroy the validity of a judgment of a court of record, rendered in 1863, when that witness's own testimony showed that his memory was at fault as to every thing else occurring about that time. (...