Huff v. Morton

• Decision Date: 31 October 1884
• Citation: 83 Mo. 399
• Parties: HUFF, Appellant, v. MORTON.
• Court: Missouri Supreme Court

83 Mo. 399

HUFF, Appellant,

v.MORTON.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Johnson Circuit Court.--HON. N. M. GIVAN, Judge.

REVERSED.

W. W. Wood and J. J. Cockrell for appellant.

(1) The release not being a satisfaction in full of the judgment did not destroy the power to issue execution and sell the property of the judgment debtor, for the reason that a sale under a satisfied judgment is void only for lack of power to issue execution thereon. McClure v. Logan, 59 Mo. 234; Durette v. Briggs, 47 Mo. 361. (2) The land in controversy having been omitted from the record of the lease, that record could impart no constructive notice, and hence, under the statute, actual notice should have been brought home to plaintiff before the release could affect his rights. R. S. 1879, sec. 693; Maupin v. Emmons, 47 Mo. 306; Leach v. Cargill, 60 Mo. 316. There was no evidence of such notice. Cornet v. Bertelsman, 61 Mo. 126; Muldrow v. Robinson, 58 Mo. 331; Martin v. Jones, 72 Mo. 23-; Beattie v. Butler, 21 Mo. 315; Lincoln v. Thompson, 75 Mo. 613.

Skirk & Portis for respondent.

(1) The court committed no error in refusing appellant's instructions. (2) The quit-claim deed was a satisfaction of the judgment, as to the land. The judgment being satisfied as to this land, a subsequent sale of it under said judgment even to an innocent purchaser, without notice would be void. Unquestionably this would be so if the judgment had been satisfied in toto. McClure v. Logan, 59 Mo. 234; Durfee v. Moran, 57 Mo. 374; Durette v. Briggs, 47 Mo. 356; Weston v. Clark, 37 Mo. 562. And why should it not be so here, where the legal effect of the quit-claim deed was to extinguish the judgment as to the particular piece of land described in it? (3) The execution under which the writ of venditioni exponas was issued was functus officio, at the time the writ was issued. Hence the sale and deed made under it were void and the deed conveyed no title.

EWING, C.

This was an ejectment suit to recover the northwest quarter of the northeast quarter of section 7, township 44, range 24, in Johnson county. The answer was a general denial. The plaintiff offered an exemplification of an original entry of the land in controversy by Thomas M. Divers from the books of the United States land office at Boonville, Missouri, dated January 10, 1842. Parol evidence of Divers that he sold the land to Wm. S. Snelling; warranty deed from Wm. S. Snelling to W. P. C. Caldwell, date 10th of April, 1851, filed for record Feb. 13th, 1857; warranty deed from W. P. C. Caldwell to Henry Ousley, date 13th of May, 1853, filed for record 13th of Feb., 1857; deed from Henry Ousley, by sheriff, to Mellville U. Foster, date 22nd of April, 1865, filed for record 19th of May, 1865; power of attorney from Henry Ousley to Stephen D. Foulke, date 30th of Jan., 1868, filed for record 29th of Aug., 1868; deed from Ousley by S. D. Foulke, attorney, to M. U. Foster, date 29th of Jan., 1869, filed for record 2nd of Jan., 1869; deed from M. U. Foster, by sheriff, to A. W. Ridings, date 26th of Feb., 1874, filed for record 24th of March, 1874. This deed recites judgment in common pleas court, 23rd of December, 1870, in favor of Tacy Bookheimer and against M. U. Foster for $1,000; issue of execution 2nd of October, 1873, returnable to October term following; levy 2nd of October, 1873, on land in controversy; advertisement for 20 days in Johnson Weekly Democrat; that on day of sale, and during October term, 1873, the sale was stopped by attorneys for plaintiff and defendant and execution returned unsatisfied; order for writ of venditioni exponas at said October term; issue of writ of venditioni exponas 23rd of January, 1874; receipt of same by sheriff, 23rd of Feb., 1874; advertisement for 20 days in Warrensburg Standard, and sale at court house door to A. W. Ridings, 25th of Feb., 1874, for $207.50. Execution and venditioni exponas in case of Bookheimer v. Foster, under which sale to Ridings was made. Deed from A. W. Ridings, by administrator, to Richard Huff, date 15th of Nov., 1879, filed 13th December, 1879. All the deeds above set out conveyed the land in controversy.

It was admitted that the defendant was in possession as the tenant of the North Western Mutual Life Insurance Company. The defendant then offered in evidence a written release in the shape of a quit-claim deed from L. W. Jack to M. U. Foster, dated January 23, 1873, in which appears the following clause: “This deed of quit-claim being made to release the above land from the lien of a certain judgment in favor of Tacy Bookheimer against said Foster rendered in December, 1879, for $1,000 and assigned to the aforesaid Leonidas Jack and now owned by said Jack, * * * so that neither the said party of the first part nor his heirs nor any other person or persons for him or in his name or behalf shall or will hereafter claim or demand any right or title to the aforesaid premises or any part thereof, but they and every one of...