Jarvis v. Russick

Decision Date31 July 1848
Citation12 Mo. 63
CourtMissouri Supreme Court
PartiesJARVIS v. RUSSICK & BETZOLD.

APPEAL FROM GASCONADE CIRCUIT COURT.

SKINNER, for Appellant. The appellant insists upon the reversal of the decree for the following reasons: 1st. Because the said Russick & Betzold, appellees, let judgment go against them in the suit at law and did not avail themselves of their defense on the trial at law before a jury, or the court sitting as a jury, nor did they bring the ground of their defense before the court of law on a motion for a new trial. Bateman v. Willoe, 1 Sch. & Lef. 203; Baker v. Elkins, 1 Johns Ch. R. 465. For if they had knowledge of their defense and neglected to make it they are concluded by the judgment at law. Lequen v. Governeur & Kimble, 1 Johns. Ca. 436. 2nd. Chancery will not relieve against a judgment at law unless the defendant was ignorant of the fact in question pending the suit, or it could not be received as a defense there. Simpson v. Hart, 1 Johns. Ch. R. 91. 3rd. If a defendant neglected to set up matters of defense before arbitration or a jury, he cannot afterwards make such matters the basis of a suit in equity unless there was some accident or fraud of which the party could not avail himself at law. McVicorar v. Walcott, 4 Johns. 509. 4th. Equity will not entertain jurisdiction of a matter which the party has had an opportunity of litigating in another court and which has been there decided against him. Kinne's Law Com. for 1843, p. 445-6. 5th. The neglect of a party to make his defense at law is no ground for equity to interfere. Cowen v. Price, 1 Bibb, 173; Isbell v. Morris et al. 1 Stew. & Porter, 41; Holding v. Holding, 1 Murphy, 10; Walker v. Smith, Yeager, 233; Veech v. Pennebacker, 2 Bibb, 32; Wilson v. Cluskere, 1 McCord, 241; Cunningham v. Caldwell, Hardin, 123; Hampton v. Dudley, 1 J. J. Marsh. 274; Mark v. Cundiff, 6 Porter, 24; French v. Garner et al. 7 Porter, 549; Moore v. Deal, 3 Stewart, 155; Thomas et al. v. Hearn et al. 2 Porter, 177; W. Smith et al. v. James Walker et al. Smedes & Marsh. 131; Matson v. Field & Cathcart, 10 Mo. R. 100.

FRISSELL, for Appellees. The defendants in error contend: 1st. That the bond had clearly failed, or rather it was without consideration. No title passed to the purchaser. Acts 1845, pp. 85, 86, 87. 2nd. That the act of the Missouri Legislature of 1845, p. 832, does not take away the jurisdiction of the chancery court in cases of failure of consideration. Acts 1845, p. 832.

MCBRIDE, J.

This was a bill in chancery, filed in the Gasconade Circuit Court by Russick & Betzold against Jarvis, the object of which was to enjoin a judgment at law obtained by Jarvis against Russick & Betzold on a promissory note given for the purchase of a tract of land; and to set aside, vacate and annul the sale. The decree in the Circuit Court was in favor of Russick & Batzold, from which Jarvis appealed. The bill charges that at the instance of John B. Jarvis, who represented himself to be a creditor of the estate of William Jarvis, deceased, the County Court of Gasconade county at their July term, 1844, “ordered that the sheriff of this county proceed to sell to the highest bidder, on a credit of twelve months, on the first day of the next term of the Gasconade County Court, to be holden in the town of Herman, on the fourth Monday in October next, so much of the real estate of William Jarvis, deceased, as will be sufficient to pay to John B. Jarvis the sum of seventy-two dollars and eighty-nine cents, with interest and costs of suit, and make report of the same according to law,” &c. &c., that the sheriff did not sell at the then next term of the County Court as directed by said order, but, at the following January term, 1845, offered for sale a portion of the real-estate of the said William Jarvis, and the defendant, Russick, became the purchaser of seven and three-fourths of an acre, for the sum of $73 97, for which he executed his note with his co-complainant Betzold as his security, to the defendant, Jarvis, and which is the same note sued upon. That he subsequently obtained a deed from the sheriff for the said land, but that the deed is only for seven acres and shows upon its face the illegality of the whole proceeding, in this, that the County Court had no legal authority to order the sale, and that the sheriff did not sell in conformity to the order of the County Court. That judgment has been obtained on the note given for the purchase-money, and the payment is sought to be coerced without any consideration having been obtained by the complainants, or any means afforded them by law to obtain a title to the land purchased by them.

The answer denies the illegality of the order and the irregularity of the sheriff's sale made under the same, and prays a dissolution of the injunction, &c.

The sheriff's deed, being in evidence,...

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10 cases
  • Bopst v. Williams
    • United States
    • Missouri Supreme Court
    • April 9, 1921
  • Robbins v. Boulware
    • United States
    • Missouri Supreme Court
    • June 20, 1905
    ...and was null and void as the same was not sworn and subscribed to, and no jurat affixed, and no seal affixed. Sec. 147, R.S. 1899; Jarvis v. Russick, 12 Mo. 63; Bompart v. Lucas, 21 Mo. 598; Pryor Downey, 50 Cal. 388. (2) The statute is mandatory, in that it provides that such notice shall ......
  • Becker v. Becker
    • United States
    • Missouri Supreme Court
    • February 10, 1914
    ...relating to the sale of real estate for the payment of debts provide fully the procedure whereby such sales are to be made. Jarvis v. Russick, 12 Mo. 63; Matson v. Pearson, 121 Mo.App. 120; Scott Royston, 223 Mo. 579; Macey v. Stark, 116 Mo. 494; Camedon v. Plain, 91 Mo. 117; French v. Stra......
  • Wilkerson v. Allen
    • United States
    • Missouri Supreme Court
    • April 30, 1878
    ...1. Nesbit could sell upon the individual note of the purchaser; if so, he might sell upon his oral promise to pay, as well. Jarvis v. Russick, 12 Mo. 63; Foster v. Thomas, 1 Am. Law Reg., (O. S.) 565. 2. The report of sale should have been made at the next term of court after such sale. Sta......
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