Johnson v. Gage

• Decision Date: 31 July 1874
• Parties: W. P. JOHNSON, Respondent, v. AARON GAGE, Appellant.
• Court: Missouri Supreme Court

57 Mo. 160

W. P. JOHNSON, Respondent,

v.AARON GAGE, Appellant.

Supreme Court of Missouri.

July Term, 1874.

Appeal from Polk Circuit Court.

Baker & Ellis, for Appellant.

W. P. Johnson, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This was an action of ejectment brought in the Polk Circuit Court, to recover the possession of lands in Polk county, in the petition described. The petition was in the usual form. The answer was a denial of the facts stated in the petition. Both parties claim to derive their title from T. D. Hall and John B. Wells.

The trial was had before the court, no jury being required by the parties.

The plaintiff read in evidence, without objection, a deed executed by Thomas D. Hall and John B. Wells, dated June 10th, 1870, purporting to convey the land in controversy to the plaintiff, and it is not disputed that the deed is sufficient for the purpose, provided said Hall and Wells were the owners of the land at the time the deed was executed. The plaintiff also offered evidence as to the value of the rents and profits, etc.

The defendant on his part offered in evidence; first, a deed from one John Caldwell, as sheriff of Polk county, dated September 28th, 1865, purporting to convey the interest of Thomas D. Hall in the land in controversy, to one James Baker. The deed recited that on the 22d day of May 1863, a writ of attachment was issued by the clerk of the Circuit Court of Polk county, in favor of Daniel Molder and against Thomas D. Hall, which was delivered to the sheriff of Polk County, and by virtue of which said sheriff, on the 25th day of May, 1863, seized and levied upon the land in controversy. Said cause was proceeded in to judgment and execution against said lands, and a sale thereof to said Baker on the 28th day of September, 1865. The deed concludes by conveying the land to said Baker, in proper form. There is no objection made as to the sufficiency of the form of said deed.

The defendant then read in evidence another deed from the sheriff of Polk county, to said James Baker, purporting to convey the lands in controversy to said Baker. This last deed recited that on the 21st day of January, 1864, a writ of attachment was issued by the clerk of the Polk Co. Circuit Courtin favor of James P. Beck, executor of the estate of Preston Beck and against Thomas D. Hall and John B. Wells, which was delivered to said sheriff, and by him on the 5th day of March, 1864, levied on all of the right, title and interest of said defendants in the land in controversy. The suit in which the attachment was issued, was prosecuted to a judgment, and the land ordered to be sold to pay the judgment. A special execution was issued on said judgment and the land sold in due form of law, and conveyed to said Baker.

The defendant then read in evidence a deed from said Baker, purporting to convey the land to defendant. These deeds were all unobjectionable in form, and it is not insisted that they were insufficient to convey the land in controversy to the defendant, provided the judgments upon which the executions were issued, were valid judgments and sufficient to uphold the executions issued thereon, so as to confer title by the sales and sheriffs' deeds thereunder. This was all of the evidence offered or given by the defendant.

The plaintiff, to show the invalidity of the judgments under which the land was sold to Baker, offered and read in evidence the entire record and proceedings in the cases of Molder against Thomas D. Hall, and the case of Beck against Thomas D. Hall, and John B. Wells; after which the evidence was closed.

At the request of the plaintiff the court then, among other declarations of law made, declared it to be as follows:

1st. “The judgment read in evidence in favor of James Beck, executor of the estate of Preston Beck, deceased, against Thomas D. Hall, was rendered without notice actual or constructive, and is void, and the sale made under said judgment and said execution by the sheriff, conveyed no title to James Baker.”

2nd. “The judgment read in evidence in favor of Daniel Molder and against T. D. Hall and John Wells, having been rendered without notice, is void, and the sale made and deed executed under the same by the sheriff conveyed no title to James Baker.”

The defendant objected to these declarations of law, but his objections were overruled, and he at the time excepted.

Judgment was then rendered in favor of the plaintiff; after which the defendant filed a motion for a new trial, which being overruled by the court, he excepted and appealed to this court.

It will be seen from the declaration of law above set forth, that the whole case was made to turn, so far as the defendant's title is concerned, on the want of notice to the defendants in the judgments and executions under which the land was sold to Baker. For it is not questioned that the deed of Baker to the defendant conveyed to defendant whatever title he had, or that it was prior in time to the deed from Hall and Wells to plaintiff.

It is not seriously questioned in this court, but that a proper affidavit was filed in each of the cases referred to, to authorize an attachment to issue, or that the attachments were regularly issued and levied on the land in question. But it is insisted that no sufficient publication or service was made on or against the defendants in either of the cases, to authorize the court to render a judgment therein, and that,...