Jones v. Howard

• Decision Date: 14 December 1897
• Citation: 43 S.W. 635,142 Mo. 117
• Parties: JONES v. HOWARD et al.
• Court: Missouri Supreme Court

43 S.W. 635

142 Mo. 117

JONES v. HOWARD et al.

Supreme Court of Missouri.

December 14, 1897.

EXECUTION — PROPERTY SUBJECT.

Rev. St. 1889, § 4915, provides that all real estate whereof defendant, or any person for his use, was seised at the time of the rendition of the judgment whereon execution was issued, or at any time thereafter, shall be liable to be seized and sold on execution. Section 4922 provides that the lien of an execution dates from filing for record the notice of the levy. Held, that a vendor who has received part of the purchase money, and has put the vendee in possession of the land under the contract of sale, retains no such direct beneficial interest in the land as is subject to execution.

Sherwood and Robinson, JJ., dissenting.

In banc. Appeal from circuit court, Moniteau county; D. W. Shackleford, Judge.

Action by Walter T. Jones against Henry B. S. Howard and another for partition, etc. From a judgment in favor of defendants, plaintiff appeals. Affirmed in division, and transferred to court in banc. Affirmed.

The following is the opinion in division (MACFARLANE, J.):

"Thomas W. Howard died in October, 1893, intestate, seised of a tract of land in Moniteau county, which he occupied with his family as a homestead. He left, surviving him, a widow and five adult sons, named, respectively, James A. J. Howard, John D. H. Howard, Thomas H. F. Howard, Henry B. S. Howard, and Richard P. W. Howard. On October 25, 1893, the sons entered into an agreement among themselves for the settlement of their father's estate. The part of it relating to the land is as follows: `The said J. A. J. Howard, J. D. Howard, and T. H. F. Howard agree to convey all their interest in the real estate of the said T. H. Howard, deceased, to the said H. B. S. Howard and R. P. W. Howard, upon the said H. B. S. Howard and R. P. W. Howard paying each of them the sum of five hundred dollars.' On the day this agreement was made, defendant Henry B. S. Howard paid thereon to J. A. J. Howard the sum of five dollars. Previous to the sale, the parties were in the joint possession of the land, and afterwards the vendee continued in the sole possession. On the 3d day of November, the said defendant paid to J. A. J. Howard $495, the balance of the agreed sum; and the latter, together with the other heirs, executed and delivered to the former a deed conveying to him a portion of said land. In March, 1887, one George F. Tower recovered a judgment in the circuit court of said county against the said J. A. J. Howard for $331.77; and on the 2d day of November, 1893, he sued out an execution thereon, and had the same levied upon the interest of the said judgment debtor in the land of which his father died seised, as aforesaid. On the same day he caused a notice of said levy to be filed in the office of the recorder of deeds of said county. The interest so levied upon was sold by the sheriff in March, 1894, and plaintiff became the purchaser, to whom a deed in due form was executed, acknowledged, delivered, and recorded. Plaintiff had notice, before he purchased, of the sale and conveyance of the land by the judgment debtor to defendant. This suit is brought and prosecuted by plaintiff against the said H. B. S. Howard and Harriet Howard, the widow of said deceased, for the assignment of dower and homestead to the widow, and for partition of the land between himself and the said H. B. S. Howard. Plaintiff claims under his sheriff's deed the one-fifth interest which James A. J. Howard inherited from his father. Defendant claims the same interest by virtue of his purchase and deed from the said James A. J. Howard. The questions may be made clear by a restatement of the facts in chronological order: In March, 1887, judgment was rendered against James A. J. Howard in the circuit court of Moniteau county. In October, 1893, the said James inherited the land. October 25, 1893, James sold the land to defendant, by contract, for $500, of which $5 was paid in cash. November 2, 1893, execution issued, levied upon the land, and notice filed. November 3, 1893, defendant paid the balance of purchase price, $495, and received a deed from the said James. March, 1894, sheriff's sale to plaintiff. The circuit court held that plaintiff acquired no interest in the land by virtue of his sheriff's deed, rendered judgment for defendant, and plaintiff appealed.

"The statutes of Missouri provide that `all real estate whereof the defendant, or any person for his use, was seised either in law or equity, at the time of the * * * rendition of the judgment, order or decree whereon execution was issued, or at any time thereafter,' shall be liable to be `seized and sold upon * * * execution issued from any court of record.' Rev. St. 1889, § 4915. The lien of an execution dates from filing for record the notice of the levy. Id. § 4922. It is further provided that the term `real estate,' as used in said section, `shall be construed to include all right and interest in lands, tenements and hereditaments.' Id. § 4917. We do not find that the precise question here involved has ever been decided by this court. It has been held, however, that, when parties have bound themselves by agreement to convey land and to pay for it, equity recognizes an interest in the land as already in the purchaser which is subject to sale under execution `upon the principle that the vendor is to be regarded as seised in equity to the use of the purchaser.' But it is said: `If no money has been paid, and if the person who may become the purchaser is not actually under any obligation to pay, then there is no seisin in the seller, even in equity, to the purchaser's use, and there is no interest in the land in him, which is liable to sale or execution.' Brant v. Robertson, 16 Mo. 149; Quell v. Hanlin, 81 Mo. 441; Block v. Morrison, 112 Mo. 350, 20 S. W. 342. In the case last cited it is said: `That a title bond for the conveyance of land gives the vendee an interest which he may sell cannot be doubted. The principle of law is well settled that, where there has been a contract for the sale of land, the vendor...