Lackey v. Seibert

• Court: United States State Supreme Court of Missouri
• Citation: 23 Mo. 85
• Parties: LACKEY, Respondent, v. SEIBERT AND OTHERS, Appellants.
• Decision Date: 31 March 1856

23 Mo. 85

LACKEY, Respondent,

v.SEIBERT AND OTHERS, Appellants.

Supreme Court of Missouri.

March Term, 1856.

1. The Law Commissioner of St. Louis county has the authority to issue writs of attachment against the property of persons sued in his court.

2. The levy of a writ of attachment upon land creates a charge or lien from the moment of the levy; a sale therefore, under an execution issued upon the judgment against the defendant in the attachment, relates back to the time of the levy, and passes the title to the purchaser, unaffected by any encumbrances created or conveyances made subsequently to such levy.

3. The requisites of a levy of a writ of attachment upon real estate. Prima facie, it should be presumed that a writ of attachment was levied as early as the date under which the return is made.

4. Where there has been a personal service of a writ of attachment upon the defendant, the attachment will not, it seems, be defeated as against subsequent purchasers, by a failure of the officer making return to state in his return the fact that notice of the attachment has been given to the actual tenants, and the names of those tenants.

Appeal from St. Louis Land Court.

This was an action in the nature of an action of ejectment to recover possession of a lot in the city of St. Louis.

The answer denies the title of plaintiff, and asserts title in August Seibert, the principal defendant, under whom the other defendants were holding as tenants. Both parties claim title under Eugene Riehl. The title of the plaintiff is based upon the following facts shown in proof on the trial:

On the 6th day of February, 1854, Lackey filed in the office of the Law Commissioner of St. Louis county a petition against Eugene Riehl, demanding one hundred dollars “on account of services rendered in selling certain real estate according to verbal agreement.” To this petition there was appended an affidavit, by Lackey, and a bond, such as are used in cases of attachment issuing out of the Circuit Court. Thereupon, on the same 6th day of February, 1854, there went forth from the Law Commissioner a writ, under his seal and sign manual, addressed to the marshal of St. Louis county, directing him to “attach Eugene Riehl by all and singular his lands and tenements, goods, chattels, &c., and to summon said Riehl to appear before the Law Commissioner's Court on the first Monday of April,” etc. The return on this writ, as appears on the record, is in the following terms:

“Executed this writ by delivering a true copy of the same and petition to the within named defendant, and by attaching (at the request of the plaintiff) the following described real estate as the property of said defendant [describing the property in dispute.] St. Louis, February 6, 1854. David Bayles, marshal. By Henry McMeins, deputy.”

Judgment by default was rended against the said Riehl April 11th, 1854; and the lot in controversy was levied on under an execution issued May 1st, 1854, and sold to Lackey. The marshal's deed conveying the said lot to Lackey is dated May 25th, 1854, and the consideration expressed is ninety dollars. The regularity of the proceedings, under the judgment and execution, was not called in question. The defendant, August Seibert, claimed title to the lot in controversy as a purchaser for value, without notice, under a deed from Eugene Riehl and wife. This deed is dated March 3d, 1854, and the consideration expressed therein was two thousand dollars. There was no evidence tending to throw doubt upon the bona fides of this transaction; nor to provide actual notice to the purchaser, Seibert, of any adversary claim on the part of Lackey, further than the pendency of the attachment suit against Riehl above referred to.

Plaintiff proved that he had demanded of defendants possession of the premises claimed in this suit, and that such demand had been refused.

The court below, on the plaintiff's motion, gave the two following instructions: “1. If the property in question was attached at the suit of Hugh Lackey against Eugene Riehl, on the 6th of February, 1854, before the Law Commissioner's Court of St. Louis county, and the said property was sold under an execution against the said Riehl in the said cause, and said Lackey became the purchaser thereof at said sale as shown by the deed from Bayles as marshal, then Lackey, under said deed, became the purchaser and owner of all the right, title and interest which the said Riehl had in and to said property on the 6th day of February, 1854.”“2. The deed of Riehl and wife to Seibert is subject to the suit by attachment of Lackey against Riehl; and the title under a judgment, execution, and sale in said suit, is a better title than the conveyance made subsequently to the attachment by Riehl and wife to Seibert.”

The court below refused the following instruction asked by defendants:

“If the jury believe from the evidence that the deed from Eugene Riehl to August Seibert, read in evidence, is genuine, the title of Seibert is a better title than that shown by the plaintiff, and in that case the jury should find for the defendants.”

Exceptions were duly taken by defendants.

R. M. Field and Kribben, for appellants. The real question here is, whether, in the proceedings in the suit by attachment before the law commissioner, the plaintiff in that suit acquired a lien effectual to overreach the title of the defendants, and this question may properly be subdivided as follows: 1st. Had the law commissioner authority under the law to issue a writ of attachment against the real estate? 2d. Supposing such general authority to exist, were the actual proceedings in this case effectual to bind the estate?

I. The argument of the respondent has been that the Law Commissioner's Court, having been constituted a court of record, by the act of 1851, (Sess. Acts, 1851, p. 241,) is authorized, as a court of record, by section 1, of article 1, of the general practice act, (R. C. 1845, p. 804,) to issue the statutory writ of attachment against real estate on the application of a suitor. This construction overlooks the exception contained in that section, and the prohibition contained in the second section of the act referred to; and is subject to the following objections:

1st. By the common law, the authority of courts of record to issue writs of attachment against real estate did not exist. No such process was known. The custom of London authorized the attachment of debts; and beyond this, nothing like our present process of attachment was known to the English law. It is certain that this peculiar process of attachment was not incident to courts of record by the common law.

2d. The powers of courts of record are defined with great pains and particularity by the legislature, in 72 sections of the act in relation to courts. (R. C. 1845, tit. Courts--judicial powers.) This act certainly confers no power on these courts to issue a writ of attachment against real estate.

3d. A construction of the law to the effect that every court of record, as such, has authority to issue the statutory writ of attachment against real estate, leads to manifest absurdity. All the county courts, the courts of probate, the criminal courts, this Supreme court, and perhaps other courts, are constituted courts of record. It is agreed on all hands that none of these courts possess the power in question.

4th. The general practice act of 1845 was not intended to confer authority on all courts of record to issue attachments, but simply to prescribe a rule of practice for courts of record having such authority. The particular clause of the statute relied on by the other side, therefore, amounts only to saying that the mode of commencing suits in courts of record is twofold, by summons and by attachment.

5th. The same general practice act of 1845, in its second section, provides that a declaration shall, in the first instance, be in all cases filed in the clerk's office. But the Law Commissioner had no clerk. The construction of the law adopted by the plaintiff below would oust the Law Commissioner of all jurisdiction by attachment or summons.

6th. The attachment law provides for a notice by publication to an absent defendant to appear at the next term. But prior to 1853, the Law Commissioner had no terms. This law, then, as to this officer, was an impracticability.

7th. By the act of 1851, the process of the Law Commissioner was to be issued to the sheriff or marshal of the county, or to any constable of St. Louis township. This township had then four constables. It is not decent to suppose that the legislature really intended that a farmer in Bonhomme or Meramec should be compelled to apply to all these officers in a distant township, to learn whether he had a clear title to his farm.

8th. Under the attachment act, writs might be issued to different counties. It is not perceived how this provision can be reconciled with the particular injunction of the special law, that the process of the Law Commissioner shall be directed to officers of St. Louis county.

9th. The attachment law of 1845 is, in terms, applicable only to the Circuit Court in respect to real estate. The legislature, however, at the same session, gave to the St. Louis Court of Common Pleas the same jurisdiction and authority, in this respect, by the following section: “Sec. 8. The practice, process and proceedings, in the court hereby established, shall be the same in all respects as is or may be provided by the law for the government of the Circuit Court, except as herein otherwise specially provided.” At the same legislative session of 1845, the Hannibal Court of Common Pleas was created, and the...