Hyde v. Copeland

• Decision Date: 27 August 1943
• Docket Number: 37965
• Citation: 173 S.W.2d 684,351 Mo. 580
• Parties: Arthur M. Hyde, Appellant, v. D. T. Copeland
• Court: Missouri Supreme Court

173 S.W.2d 684

351 Mo. 580

Arthur M. Hyde, Appellant, v. D. T. Copeland

No. 37965

Supreme Court of Missouri

August 27, 1943

Appeal from Grundy Circuit Court; Hon. V. C. Rose, Judge.

Reversed and remanded (with directions).

Thomas J. Layson for appellant.

(1) Plaintiff, as the owner and in the peaceful possession of lands, is entitled to maintain a suit in equity to enjoin a judgment creditor of his grantor from selling the lands under an execution sale based on a void judgment. He may, in the same suit, if equitably entitled thereto, have the court decree that he took the lands free from the lien or the apparent lien of such judgment. He may in such action have as against the defendant, the establishment of superior equitable rights and liens. His suit would be a new, separate and independent action in equity. The right to maintain such an action is well established. Such an action by a suit in equity would be a direct attack. Charter Oak Co. v Cumming, 90 Mo. 267; Davison v. Arne, 155 S.W.2d 155; Hankins v. Smarr, 345 Mo. 973, 137 S.W.2d 499; Harttmann v. Owens, 293 Mo. 508, 240 S.W. 113; Tokash v. Workmen's Comp. Comm., 139 S.W.2d 978; Sec. 1683, R. S. 1939; Gardner v. Terry, 99 Mo. 523; Henman v. Westheimer, 110 Mo.App. 191; Schwab v. St. Louis, 310 Mo. 116, 274 S.W. 1058; Merchants' Bank v. Evans, 51 Mo. 335; Verdin v. St. Louis, 131 Mo. 27, 78 A. L. R. 24; 19 Am. Jur. Equity, Secs. 112, 127; Jefferson City Bridge & Transit Co. v. Blaser, 318 Mo. 373, 300 S.W. 778; 31 Am. Jur., Judgments, secs. 610, 614; Reger v. Reger, 316 Mo. 1310, 293 S.W. 414; Hankins v. Smarr, 345 Mo. 973, 137 S.W.2d 499; Harrington v. Utterback, 57 Mo. 519. (2) The lien of a judgment does not constitute or create an estate, interest or right of property in the lands which may be bound for its satisfaction; it gives merely a right to levy on such lands to the exclusion of adverse interests subsequent to the judgment. The lien of a judgment being merely an incident of a judgment, its loss does not necessarily impair the validity of a judgment. It was impossible to set off a homestead to plaintiff's grantor, an area worth $ 1500. The area set off would be subject to the whole mortgage. Likewise, any part sold would be subject to the whole mortgage. There was no way to give the owner in land what the law grants him, namely, land with a clear value of $ 1500. Defendant, as a judgment creditor, had no remedy in law to enforce the judgment lien. No right existed to make a levy. No judgment lien existed in law. 34 C. J., Judgments, sec. 872; Endres v. Hadeler, 220 S.W. 1002; Warner v. Veitch, 2 Mo.App. 459. (3) The lien of the judgment did not attach to Fred A. Hein's homestead because the debt upon which the defendant's judgment was had was created after its acquisition, and therefore defendant's judgment lien did not follow the lands into the hands of plaintiff, an innocent vendee. Sec. 608, R. S. 1939; May v. Gibler, 319 Mo. 672, 4 S.W.2d 769; Brennecke v. Riemann, 102 S.W.2d 874, 109 A. L. R. 1214; Beckmann v. Meyer, 75 Mo. 333. (4) Plaintiff's grantor had an absolute right to convey his homestead to plaintiff. The defendant, as a judgment creditor, had no interest in such property. The property could not be subjected to payment of a judgment by a proceeding in equity any more than it could be seized and sold under execution, and plaintiff took the property, as a purchaser, free from any claim of defendant, as a judgment creditor. Brennecke v. Riemann, 102 S.W.2d 874, 109 A. L. R. 1214; Bank of Versailles v. Guthrey, 127 Mo. 198; Kendall v. Powers, 96 Mo. 142; Davis v. Land, 88 Mo. 436; Holland v. Kreider, 86 Mo. 59. (5) Defendant's right in equity to enforce the lien of his judgment was inferior to plaintiff's equitable rights because equity would require a showing of clear value above the mortgage and homestead rights before a court would order a sale of the lands subject thereto, and defendant did not offer to do equity for the price of the court's decree by setting up in his answer an offer to pay plaintiff the amount of the homestead right, to-wit, $ 1500. Brennecke v. Riemann, 102 S.W.2d 874, 109 A. L. R. 1214. (6) The plaintiff, as the grantee in the Warranty Deed conveyance made by the homesteader, Fred A. Hein, and his wife, acquired such homestead right in exemption as a part of the conveyance and acquisition of the ownership in fee of the lands free from any lien of defendant's judgment, and hence, plaintiff was entitled to have the court find and decree, by its judgment and decree, that plaintiff have as against defendant a lien for such homestead right in the amount of $ 1500 first and superior to the lien of defendant's judgment. Brennecke v. Riemann, 102 S.W.2d 874, 109 A. L. R. 1214.

C. C. Ross for respondent.

(1) The trial court had no jurisdiction in equity to hear this case. Tokash v. Workmen's Comp. Comm., 193 S.W.2d 978; Gardner v. Terry, 99 Mo. 523; Marsala v. Gentry, 232 S.W. 1046; Herman v. Westheimer, 110 Mo.App. 191; Jones v. Overall, 13 S.W.2d 581; State v. Robertson, 137 S.W. 773; Sec. 1387, R. S. 1939; State ex rel. v. Anderson, 133 S.W.2d 695; Palmer v. Marshall, 24 S.W.2d 229; Thompson v. City of Malden, 118 S.W.2d 1059. (2) The appellant was entitled to the benefit of the homestead of his seller.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

This is a suit in equity, filed by plaintiff wherein he seeks to remove a cloud from his title to a tract of land of two hundred and fifty-nine acres located in Grundy county, Missouri. The alleged cloud upon the title was in the form of a judgment in favor of the defendant Copeland and against Fred A. Hein from whom plaintiff purchased the land. Copeland had an execution issued about two years after plaintiff had purchased the land and the sheriff levied upon the land in question to satisfy the judgment. The trial court entered a judgment granting plaintiff a first lien upon the land in the sum of $ 6,821.76, being the amount due on a note executed by Hein which was secured by a deed of trust upon the land, and ordered the land sold subject to that lien. Plaintiff in his petition also asked the court to give him credit for improvements, credit for the amount of a homestead which Hein had possessed and also asked for an injunction and that the cloud be removed from the title. All of this the trial court denied and from that judgment plaintiff appealed.

Respondent urges that the trial court did not have jurisdiction to try this as an equity case. We need not cite authorities to sustain appellant's position that a suit to remove a cloud from a title to land, and wherein plaintiff seeks credit for valuable improvements placed upon the land, is a suit in equity. The facts and circumstances leading up to this lawsuit were not in dispute. We will recite as much thereof as is pertinent to the issues in the case. Fred A. Hein and wife owned the land in question. In the year 1926 they executed a note for $ 6,000.00, payable to the Phoenix Mutual Life Insurance Company, and secured the same by a deed of trust on the land. In December, 1932, the defendant Copeland obtained a judgment in the circuit court of Grundy county in the sum of $ 640.00 against William and Fred A. Hein. In December, 1937, a writ of scire facias was issued to renew the judgment, and on February 22, 1938, the circuit court of Grundy county adjudged a revival thereof. On February 23, 1938, plaintiff purchased from Fred A. Hein and his wife the two hundred and fifty-nine acres of land involved. The deed was recorded February 25. There was $ 6,821.76 due on the note held by the Phoenix Mutual Life Insurance Company. There was also due against said land $ 440.71 back drainage taxes and $ 262.65 state and county taxes, making a total of $ 7,525.12 as liens against the land, which of course were prior to that of the judgment. Plaintiff gave the Heins, as consideration for the equity in the land, two years of rental of other land which was valued at about $ 250.00 per year. Plaintiff took possession of the farm and placed thereon improvements which the trial court found to have cost in excess of $ 15,000.00. In October, 1940, when the improvements were about completed, the defendant Copeland had an execution issued and levied upon the land for the purpose of satisfying his judgment. This suit followed.

The evidence as to the value of the land at the time plaintiff purchased it was that it was worth about $ 30.00 per acre or a total of $ 7,770.00. The trial court found that the land was not worth more than $ 8,000.00. The evidence showed that plaintiff, prior to the time he purchased the land, employed a competent abstracter to ascertain and determine the amount of liens thereon. The abstracter failed to discover that the judgment of revival had been entered. The trial court's finding as to the condition of the record will sufficiently illustrate why the abstracter failed to discover the revival judgment. The findings are as follows:

"I find that neither plaintiff nor his abstracter had any actual knowledge of the original or the revived judgment until October, 1940. That while the judgment of 1932 was properly docketed and recorded there was in existence no entry in the docket judgment index relative to the revival judgment of 1938, on either February 22, 23, 24 or 25, 1938. I find there was in existence on these last named dates the following:

"First The original papers of the 1932 suit and the original judgment therein properly docketed and spread of record in Grundy County, Missouri.

"Apparently no index of suits filed was kept by the clerk in 1932.

"Second, Separately kept, the papers in the revival suit, consisting of the petition for Scire facias, summons and return and perhaps others...