King v. Hayes

• Decision Date: 17 September 1928
• Citation: 9 S.W.2d 538,223 Mo.App. 138
• Parties: JIM KING, APPELLANT, v. SAM HAYES ET AL., RESPONDENTS. [*]
• Court: Missouri Court of Appeals

9 S.W.2d 538

223 Mo.App. 138

JIM KING, APPELLANT, v. SAM HAYES ET AL., RESPONDENTS. ^[*]

Court of Appeals of Missouri, Springfield

September 17, 1928

Appeal from the Circuit Court of Pemiscot County.--Hon. Henry C Riley, Judge.

AFFIRMED.

Judgment affirmed.

Ward & Reeves for appellant.

Von Mayes for respondents.

BAILEY J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.

This is a suit in equity filed February 2, 1924, to enforce a judgment lien against certain real estate owned by defendants, respondents herein. Defendants, on motion, were given a judgment on the pleadings and plaintiff has appealed. The appeal was to the Supreme Court but was thereafter transferred to this court as having jurisdiction.

Plaintiff's petition sets forth that he obtained a judgment in the circuit court of Pemiscot county on the 19th day of April, 1921, in the sum of $ 3500 against one D. T. Tucker; that at the time said judgment was rendered the said D. T. Tucker was the owner of certain real estate in Pemiscot county; that said judgment became a lien against said real estate; that thereafter, on November 29, 1921, said Tucker, by his deed of that date, conveyed all his right, title and interest in said real estate to one Clarence Ferrell, and said conveyance was subject to the lien of said judgment; that thereafter defendants, by mesne conveyances, obtained all the right and title of Tucker and Ferrell in and to said real estate; that the said Tucker died in 1922, and plaintiff's claim was allowed against his estate in the sum of $ 4043.80, of which $ 470 was paid out of the assets of said estate; that the said Tucker's estate is insolvent and plaintiff will be paid nothing further therefrom; that said judgment is an existing lien against said real estate (less the sum of $ 470). Wherefore plaintiff prays for a decree foreclosing said judgment lien by execution and sale of said real estate, or so much thereof as will discharge said judgment lien.

Defendants' original answer sets up that prior to the date of plaintiff's alleged judgment, the said D. T. Tucker purchased the land in question from one J. W. Stephens for the sum of $ 1325, and had executed to one T. C. Sample a note for that amount, secured by a deed of trust on said land; that thereafter Clarence Ferrell purchased said note and, in payment thereof, accepted a warranty deed to said real estate from the said Tucker; that defendants purchased said real estate by mesne conveyances in good faith and, believing they had good title, erected valuable improvements thereon to the amount of $ 20,000; that in the event said land be ordered sold then the court decree defendants to have a prior lien thereon for the amount of said original mortgage debt and the value of said improvements. The cause was set down for trial for April 8, 1924, at which time the court made an entry of record continuing said cause, which order was made at defendants' request and after plaintiff had announced ready for trial.

Thereafter, on April 21, 1924, defendants filed an amended answer setting up, in addition to the allegations of the original answer, that three years had expired since the rendition of the judgment mentioned in plaintiff's petition and that the same had not been revived according to law and that no scire facias had been issued thereon and that the lien of the judgment had expired. On April 25, 1924, plaintiff filed a reply alleging, among other things, that plaintiff had been ready for trial on April 8, 1924, but, at defendants' request, the case was continued until April 25th; that "between said dates of April 8, 1924, and April 25, 1924, as the defendants allege in their said amended answer (though the plaintiff does not admit the fact), the judgment lien as aforesaid on the lands aforesaid so mentioned and described in plaintiff's petition expired, and that by reason thereof, as alleged in the defendant's said amended petition (though not admitted by the plaintiff), plaintiff cannot now maintain this suit or cause of action for the enforcement of the lien as aforesaid; that plaintiff was ready and prepared to go to trial in said cause on said 8th day of April, 1924, and that the defendants sought to continue the case for the ostensible reason that some of their witnesses were not present in court, but this plaintiff charges and avers that defendants designedly and purposely sought a continuance of said cause in order to take advantage of the plaintiff, and in order to get said cause postponed until the expiration of the three years aforesaid, and that their application and request to the court to pass said cause, or to continue same, was not made in good faith."

The reply further sets up an estoppel. Thereafter, on April 25, 1924, defendants filed a motion for judgment on the pleadings. Thereafter on August 15, 1924, this motion was sustained and this appeal followed.

It appears from the record in this case that plaintiff obtained the original judgment against D. T. Tucker on the 19th day of April, 1921. On that date it became a lien against the real estate owned by Tucker, which lien continued for a period of three years. [Sec. 1556, R. S. 1919.] It would therefore have expired, unless in some manner revived, on the 19th day of April, 1924. Plaintiff filed his bill in equity to foreclose this lien on the 2nd day of February, 1924; the case was set for trial April 8, 1924, but at defendants' request, was continued until April 25, 1924. In the interim, unless this suit had the effect of keeping the judgment lien alive, the lien thereof had expired before the motion for judgment on the pleadings was filed. If the lien had expired, the judgment on the pleadings was proper. It is with that question we are now concerned.

There was a time in the history of jurisprudence in this State when the lien of a judgment was held to be extinguished by the death of the judgment debtor. [Miller v. Doan, 19 Mo. 650.] Since 1855 the...