Jordan v. Surghnor

• Decision Date: 22 December 1891
• Citation: 17 S.W. 1009,107 Mo. 520
• Parties: JORDAN et al. v. SURGHNOR.
• Court: Missouri Supreme Court

17 S.W. 1009

107 Mo. 520

JORDAN et al. v. SURGHNOR.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

EXECUTION ON JUSTICE'S JUDGMENT — SHERIFF'S DEED — TENANCY IN COMMON — EJECTMENT.

1. Proof of a justice's judgment or of the transcript thereof is not a prerequisite to the admission in evidence of a sheriff's deed under an execution founded thereon, where the deed contains recitals which are, under Rev. St. 1879, § 2392, prima facie evidence of the rendition of the judgment and the filing of the transcript.

2. Under Rev. St. 1879, § 2999, which provides that no execution on a justice's judgment "shall be issued out of the court where the transcript is filed, if the defendant is a resident of the county," until execution shall have been issued by the justice and returned unsatisfied, the issue of execution by the justice is not a condition precedent to the issue of one by the clerk of the court in which the transcript is filed if the defendant therein is a non-resident of the county.

3. One claiming an undivided interest in real property through a sheriff's deed may bring ejectment against a hostile co-tenant who has ousted him from possession.

4. In ejectment by one tenant in common against a co-tenant, an answer admitting the withholding of possession from plaintiff, and claiming lawful possession, admits an ouster.

5. A demand of possession by a tenant in common from his co-tenant, and refusal by the latter, constitutes an ouster from the joint possession.

Appeal from Hannibal court of common pleas; THOMAS H. BACON, Judge.

Action of ejectment by Harvel Jordan and another against Burr P. Surghnor. Judgment for plaintiffs. Defendant appeals. Affirmed.

Rev. St. 1879, § 2999, relating to executions on judgments of justices of the peace, provides: "But no execution shall be sued out of the court where the transcript is filed, if the defendant is a resident of the county, until an execution shall have been issued by the justice, directed to the constable of the township in which the defendant resides, and returned that the defendant had no goods or chattels whereof to levy the same."

Harrison & Mahan, for appellant. Judge G. Porter and W. D. Anderson, for respondents.

MACFARLANE, J.

This is an action of ejectment to recover an undivided one-fourth of a lot in the city of Hannibal. The petition was in the usual form of ejectment, charging that the defendant unlawfully withholds from plaintiffs the possession. The answer admitted that defendant was in possession of one undivided one-fourth of the lot, and that he withheld from plaintiffs the possession thereof, but averred that his possession was lawful. Plaintiffs read in evidence a deed made by Daniel Manning and wife, conveying the lot in controversy to Mary E. Surghnor for life, with remainder to Hayward B., Valentine H., Burr P., and Florida F. Surghnor. It was shown that Mary E. Surghnor died on the 2d day of March, 1888, and at the date of the trial, May 10, 1889, Valentine H. Surghnor had been a non-resident of the state from three to five years. Plaintiffs thereupon read a deed from the sheriff of Marion county, purporting to convey to them said lot. This deed recited that on the 3d day of November, 1886, plaintiffs obtained a judgment before a justice of the peace of Mason and Miller township, in Marion county, against V. H. Surghnor, for $125, as appeared by a transcript of said judgment filed in the office of the Hannibal court of common pleas on the 3d day of March, 1888, upon which an execution issued on the 28th day of August, 1888, and was delivered to the sheriff August 31, 1888, under which, on that date, he levied on and seized all the right, title, interest, and estate of the said V. H. Surghnor in said real estate. The further recitals of the deed were in all respects as required by law. Plaintiffs were the purchasers, to whom all the right, etc., of said V. H. Surghnor were "assigned, transferred, and conveyed." This deed was duly acknowledged and recorded. Objection was made to the reading of this deed, on the ground that it had not been shown that execution had issued from the judgment of the justice and returned nulla bona, which was a condition precedent to issuing an execution by the clerk; and upon the further ground that a judgment of the justice had never been shown. Plaintiffs thereupon offered evidence tending to prove that V. H. and Valentine H. Surghnor was the same person. It was also shown that defendant was in the actual occupancy of the premises, and that prior to the commencement of the suit one of the plaintiffs had informed him that they had purchased the interest of Valentine H. Surghnor in the property, and demanded possession, which was refused....