Jones v. Paul

• Decision Date: 31 July 1845
• Citation: 9 Mo. 293
• Parties: JONES v. PAUL ET AL.
• Court: Missouri Supreme Court

9 Mo. 293

JONES

v.PAUL ET AL.

Supreme Court of Missouri.

July Term, 1845.

ERROR TO PLATTE.

ISAAC N. JONES, for Plaintiff.

STRINGFELLOW, for Defendants. 1. The bill charges that the deed from Paul to Marshall is fraudulent and void, and at the same time admits it to be a mortgage, and prays to redeem. 2. It does not show any title in complainant: 1st. The sheriff's deed is insufficient in not showing that the property was advertised for sale according to law, or that it was sold according to law. See Stat. 1835, p. 258, §§ 38, 39, 45. 2nd. The judgment rendered by the justice is void, there being no service of process. Stat. 1835--title Justices' Courts. 3rd. There was no execution returned according to law, by the constable. It was returned on the day it was issued--and was not returned that “defendant had no goods or chattels whereof to levy the same”--but “that no property belonging to defendant was found in the township.” Stat. p. 364, § 19. 4th. The execution issued to the constable did not correspond with the judgment. 5th. There is no exhibit filed and referred to, showing that the copy of the judgment had ever been filed with the clerk. 6th. The execution issued by the clerk was not issued upon the transcript of the judgment filed in his office, but upon a transcript of a different judgment, and for costs incurred after filing the copy of the judgment. 3. The bill is multifarious. In one part it prays an account of the rents and profits of the mortgaged premises, a conveyance of title from Marshall, and a foreclosure of the equity of redemption of Paul. And in another an account of moneys not alleged to have been received on, or to be applied to discharge of mortgage 4. The bill is not to redeem but to foreclose, and shows no right in plaintiff.

MCBRIDE, J.

The complainant filed his bill on the chancery side of the Platte Circuit Court, on the 26th August, 1844, against the defendants. The bill states that Samuel Paul, and Elmira Paul, his wife, on the 14th July, 1842, conveyed by deed to Frederick Marshall lot number 2, in block numbered 31, in Platte City, for the consideration of $110, as expressed in the deed. On the 10th October, 1843, the complainant obtained before a justice of the peace in Platte county, a judgment against the defendant Paul for about $87, debt, interest and costs, upon which execution issued, which was returned instanter, “No property found of the defendant in my township whereon to levy this execution, 13th November, 1843.” On the 11th October, 1843, the complainant obtained a transcript of his judgment and filed the same in the office of the clerk of the Circuit Court of Platte county, upon which an execution was issued by the clerk on the 13th November following, which was by the sheriff levied on the lot conveyed by Paul and wife to Marshall, and the lot sold by virtue thereof on the 9th April, 1844, when the complainant became the purchaser at the sum of $5, and received the sheriff's deed therefor.

The bill further states that the lot and improvements thereon were worth at the time of the conveyance from Paul and wife to Marshall, the sum of $400, and the yearly rent about $80: that the deed although absolute on its face, was only intended as a mortgage to secure a debt due from Paul to Marshall of $110. The bill then proceeds, “your orator further charges that Paul and wife conveyed said lot to said Marshall to defraud, hinder and delay the creditors of said Paul--said Paul being at that time insolvent, and having no other property subject to execution.” Since the 14th July, 1842, Paul assigned to Marshall a claim he held against Platte county, amounting to $400, to protect the same from the payment of his debts, and since the transfer, Marshall has received a large amount of said claim--that complainant notified Marshall of his claim against Paul, and requested him to retain in his hands an amount sufficient to pay complainant's debt. The complainant has proffered to pay Marshall the balance due him from Paul, after deducting the payments made by Paul, the rents and profits of the house and lot, and the usury charged in the transaction, should there be any balance, and concludes by propounding a number of interrogatories to the defendants, with a prayer for the foreclosure of the mortgage, the setting aside the deed for fraud, and for general relief.

To the bill, the defendants filed their joint and several answer, to which the complainant filed his exceptions. Afterwards by agreement the answer was withdrawn, and the defendants filed a general demurrer assigning special causes to the bill; whereupon the complainant obtained leave to amend his bill: the amendment sets out more fully the exhibits referred to in the bill and makes them a part thereof, and concludes by reiterating substantially the interrogatories put by the bill. The defendants again demurred which being sustained by the court, and the bill dismissed, the complainant has brought his case into this court by writ of error.

The counsel on both sides have presented many points which cannot legitimately arise on the demurrer, and which this court will not now examine in detail. Whether the judgment of the justice of the peace is regular--whether the return of the constable on the execution, is sufficient in law--within what time the constable may make his return so as to authorize the clerk to issue an execution from his office on the transcript--and whether the deed of the sheriff contains all the recitals required by our statute, are questions which will more properly arise an the trial and must first be presented to and decided by the Circuit Court, before this court can entertain them. For those questions to be decided on demurrer would be almost equivalent to a trial of the cause upon its merits.

The bill first charges the defendants, Paul and wife, with having executed a deed of conveyance to their co-defendant, Marshall, which although unconditional on its face, was intended by the parties thereto as a...