Kingman v. Sievers

• Decision Date: 08 March 1898
• Parties: KINGMAN et al. v. SIEVERS.
• Court: Missouri Supreme Court

45 S.W. 266

143 Mo. 519

KINGMAN et al. v. SIEVERS.

Supreme Court of Missouri, Division No. 1.

March 8, 1898.

EJECTMENT — PROOF — LEGAL TITLE.

1. Ejectment cannot be maintained where plaintiff never was possessed of the legal title.

2. A purchaser, at a sale on execution against a husband, of land standing in the name of the wife, obtains no title which he can enforce in ejectment, though the conveyance to the wife was made to defraud the creditors of the debtor.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Ejectment by Kingman & Co. against Louis Sievers. From the judgment, both parties appeal. Reversed.

C. B. Sebastian and Geo. Robertson, for plaintiffs. O. Guitar and W. W. Fry, for defendant.

ROBINSON, J.

This is a statutory action of ejectment for the recovery of 40 acres of land in Audrain county. The answer is a general denial. After a trial, judgment was rendered in favor of plaintiffs for an undivided three-fourths of the land, and both plaintiffs and defendant have prosecuted appeals to this court.

The testimony in this case for plaintiffs shows: That one S. P. Nichols owned a house and lot in the town of Centralia worth some four or five hundred dollars, in which he and his wife had been living for the past several years prior to October, 1891. That prior to that date he had become indebted to the plaintiff herein for seven or eight hundred dollars on sundry accounts for farming implements sold by plaintiff to him as a retail dealer in such articles. That during that time the defendant owned and occupied a farm near Centralia of 160 acres, and also a detached 40 acres, which is the land now in controversy. On the 12th of October, 1891, the defendant sold this 40 acres to S. P. Nichols, and at the request of said Nichols conveyed the same to Nannie N. Nichols, his wife, by general warranty deed, and accepted a deed from said Nichols and wife to the house and lot in Centralia, claimed by them as a homestead, and upon which for a number of years they had been residing, as part payment for the 40 acres, at the agreed price of $400; and for the remainder of the purchase price Nichols and wife assumed and agreed to pay $1,200 on a deed of trust for that amount which the defendant had previously placed upon this land and his home farm, of 160 acres, before named. This last was a verbal agreement between defendant and Nichols and wife, but no mention of it was made in the deed from the defendant to Nannie N. Nichols. On November 29, 1891, plaintiff obtained a judgment against said S. P. Nichols on one of its accounts for $244, before a justice of the peace of that county, and caused a transcript thereof to be filed with the clerk of the circuit court of Audrain county, on which, in time, an execution was issued, and the land in controversy was levied upon and sold as the property of said S. P. Nichols; and the plaintiff on the 10th day of June, 1892, at said sale, became the purchaser thereof. Plaintiff read in evidence a warranty deed from Anton Sievers and others to Louis Sievers, the defendant herein, dated January 27, 1883, and filed for record November 3, 1883, conveying the land in suit; then the warranty deed from said defendant Louis Sievers to Nannie N. Nichols, of date October 12, 1891, duly recorded on same day, conveying said land; next, the sheriff's deed of date June 10, 1892, above mentioned, conveying all the right, title, and interest of S. P. Nichols in and to this land to the plaintiff herein. Testimony was then offered tending to show that S. P. Nichols had turned over to the defendant, after they had traded places, several hundred dollars' worth of stock, to be applied on the balance due from Nichols and wife to defendant on their assumption. Testimony was then offered tending to show that S. P. Nichols in the spring of 1892 left Centralia, and moved to Kansas or Colorado; that an attachment suit was afterwards begun against him, as a nonresident, and sustained, in which the land in suit was levied upon as the only remaining property of said Nichols in this state. The defendant then offered testimony tending to show that Nichols and wife had paid no part of the unpaid balance of $1,200 which they had assumed to pay for him on the deed of trust that he had previously made on this and other lands belonging to him, and that as a consequence the land in suit was...