Lillard v. Shannon

• Citation: 60 Mo. 522
• Parties: ROBERT W. LILLARD, et al., Respondents, v. DAVID E. SHANNON, et al., Appellants.
• Decision Date: 31 May 1875
• Court: Missouri Supreme Court

60 Mo. 522

ROBERT W. LILLARD, et al., Respondents,

v.DAVID E. SHANNON, et al., Appellants.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Circuit Court.

Willard P. Hall, for Appellants.

I. The execution of December, 1862, issued from the Nodaway court came to the sheriff of Andrew county the same month, and became a lien on the land in suit from that time; and as Mrs. Montgomery did not purchase till February, 1863, she took subject to that execution. (R. C. 1855, pp. 741-2; § 21.)

II. The levy of the execution on personal property did not satisfy it. The property was returned to and sold by defendant. (10 Mo., 721; 11 Mo., 537; 26 Mo., 308.)

III. Defendants were innocent purchasers for value, without notice. Hence a court of equity will not interfere. (Hamilton vs. McClelland, 45 Mo., 425; 2 Lead. Cas. in Eq., pp. 38, 81.)

B. R. Vinyard, with A. H. Vories, for Respondents.

I. If sufficient personal property is levied upon to satisfy an execution on a judgment, such levy is a satisfaction of the judgment. (Blair vs. Caldwell, 3 Mo., 353; Boone County vs. Lowry, 9 Mo., 24; Bernard vs. Littlejohn, 4 Ohio, 223; Reynold vs. Rogers, Adm'r, 5 Ohio, 169; Smith vs. Hughes, 24 Ill., 270.) The judgment in law was thereby satisfied, unless the property or the bond taken proved ineffectual at the time such proposed sale was to take place. The levy, therefore, on the land, on the 22d day of August, 1863, was without authority, and the sale of the same on the 8th day of October following, passed no title to the defendants. (Durette vs. Briggs, 47 Mo., 356; Weston vs. Clark, 37 Mo., 568.)

II. The execution, under which the sale of the land took place, was at the time of the levy and sale by the sheriff, functus officio. The act of Feb. 18, 1863 (Acts of 1862-3, p. 154) continuing the life of the execution, was qualified by the act of March 23, 1863 (Acts of 1862-3, p. 20); so that a levy before a return day of the execution was necessary to keep it in force after the return day. (McDonald vs. Gronefeld, 45 Mo., 28; Bank of the State vs. Bray, 37 Mo., 194.)

III. The allegation of fraud charged in the petition is fully sustained by the proof.

NAPTON, Judge, delivered the opinion of the court.

This suit was commenced in May, 1864, and originally the plaintiff was one Whitley, since dead, and subsequently Mrs. Ann Montgomery, who was the beneficiary in the deed to Whitley, and upon the death of both Whitley and Mrs. Montgomery, Lillard and others, sole heirs of Mrs Montgomery, were made plaintiffs.

The facts in the case appear to be these: On the 14th of February, 1863, one Buford Menifee, then a resident of Andrew County, Mo., and owning in conjunction with William Whitley, a tract of land on which he lived, sold his half of said farm (the whole tract being a few acres under seven hundred) to Mrs. Montgomery, a sister of Whitley, who lived in Kentucky. This purchase was made through Mrs. Montgomery's agent, one Kipinger, and a portion of the purchase money was paid down, and the remainder secured by notes. There seems to be no question on either side, of the good faith of this purchase. Mrs. Montgomery, who was then a married woman, had ample means of her own left to her by her father, and her husband seems at that time to have been absent from Kentucky, traveling in Canada or some of the Northern States--in fact, as may be conjectured from the date, getting out of the reach of the civil commotion then rife in his State.

The consideration for this sale was $4,000. On the 16th of February, 1863, a deed was made to Whitley, trustee, who was a brother of Mrs. Montgomery, and was acknowledged on that day by Menifee. Mrs. Menifee was not then, on account of the weather, able to travel to Savannah, and her acknowledgment was not taken till July 17th, 1863, and on the 18th of July, the deed was duly recorded.

On the 6th of May, 1862, one Russell obtained judgment against Menifee for $667, in Nodaway county. On the 22d of May, 1862, an execution was issued to Andrew county, where Menifee lived, returnable on the third Monday in November, 1862. On the 3rd of October, 1862, this execution was returned unsatisfied. On the 17th of December, 1862, an alias writ issued, which was returnable on May 4th, 1863, and which came to the hands of the sheriff of Andrew county in December, 1862. On the 10th of June, 1863, this writ was levied on personal property of Menifee, amply sufficient to satisfy it, and the property was advertised to be sold on the 23d of June, 1863.

By agreement between plaintiff in the execution, the sheriff, and defendant, Menifee, the sale was postponed till the 17th of October, 1863. This agreement was entered on the execution, and Menifee gave a forthcoming bond, on which Woodcock, Pen, Gilman, &c., were securities.

There is abundant evidence that the personal property was amply sufficient to satisfy the execution. It is so averred in the petition, and the proof clearly establishes the fact.

On the 22d of August, 1863, as appears by the return and the deed made in conformity with the sale, the sheriff levied this execution upon the land in controversy, that is upon Menifee's half interest in the seven hundred acres upon which the farm was. Upon the 12th of September, 1863, the sheriff advertised the land to be sold on the 8th of October, 1863. This day fixed for the sale, it will be observed, was nine days before the personal property already levied on, was, by the forthcoming bond, to be delivered. The sale of the land took place on the day advertised, and was bid on by John McLain, in the name of the defendants, one of whom is his son, and the other a near relation. John McLain paid the money bid, which was about $400. The deed of the sheriff was made to defendants.

The allegations of the petition, which seeks to set aside the sheriff's deed, are that John McLain and the defendants knew of this previous levy on personal property of Menifee, and charges that these transactions were fraudulent; that there was a conspiracy between the sheriff and Menifee and John McLain, to defraud Ann Montgomery out...