Lindell Real Estate Co. v. Lindell

• Decision Date: 17 March 1896
• Citation: 33 S.W. 466,133 Mo. 386
• Parties: Lindell Real Estate Company v. Lindell et al., Appellants
• Court: Missouri Supreme Court

33 S.W. 466

133 Mo. 386

Lindell Real Estate Company v. Lindell et al., Appellants

Supreme Court of Missouri, Second Division

March 17, 1896

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Affirmed.

Clopton & Trembley for appellants.

At the date of the filing of this suit, the legal title to the property in dispute was in Jessie G. L. Antisdel, unless it had been divested by the decree in the circuit court of the city of St. Louis. The sale by the sheriff of St. Louis county did not affect her legal title; for the judgment was against John Baker. The decrees in the cases of Lionberger v John Baker et al., and Lionberger v. Pollard et al., affected only the property lying in the city of St. Louis. The bills in the cases were not general creditors' bills, but bills brought by Lionberger (for the benefit of Davis) to set aside certain deeds and vest the title to property lying in the city of St. Louis in him, he having been the purchaser thereof at sheriff's sales. Watkins v. Holman, 16 Peters, 25; 1 Pomeroy's Eq. [2 Ed.] 134; Hart v Sansom, 110 U.S. 154; Ensworth v. Holly, 33 Mo. 370; Fields v. Maloney, 78 Mo. 172; Munday v. Vail, 43 N. J. L. 418; 1 Freeman on Judgments, sec. 120; Wimer v. Wimer, 82 Va. 901; Lindley v. O'Reilly, 50 N. J. 642; Fithian v. Marks, 43 Mo. 502; Bray v. Marshall, 66 Mo. 122; Kring v. Porter, 77 N.C. 25.

Boyle, Priest & Lehmann for respondent.

(1) The two judgments of the circuit court of the city of St. Louis whereby the instruments under which appellants claim title were adjudged fraudulent and void as against the judgment of the Fourth National Bank, are conclusive upon the parties and their privies in any court or cause of action where the same issue is presented. Freeman on Judgments, sec. 253; McCamment v. Patterson, 39 Mo. 100; Buchanan v. Smith, 75 Mo. 463; Shirley v. Fearne, 33 Miss. 653; Hanna v. Reed, 102 Ill. 596; Johnson v. Gibson, 116 Ill. 294; Lawrence v. Milwaukee, 45 Wis. 306; Tadlock v. Eccles, 20 Tex. 782; Hollister v. Abbott, 31 N.H. 442; Yates v. Yates, 81 N.C. 397. (2) A purchaser at a sale under execution acquires all the right, title, and estate of the judgment creditor, and succeeds to the same right to challenge a prior conveyance of the debtor on the ground of fraud as against such creditor. Freeman on Executions, sec. 335; Ryland v. Callison, 54 Mo. 513; Gentry v. Robinson, 55 Mo. 260; Matson v. Capelle, 62 Mo. 235; Rogers v. Tucker, 70 Mo. 457; Shirley v. Fearne, 33 Miss. 653. (3) The circuit court of the city of St. Louis had jurisdiction in the suits of Lionberger v. Baker et al., and Lionberger v. Pollard et al., to divest title to land in the county as well as in the city of St. Louis. R. S. 1889, sec. 2011. The testimony shows that part of the land included in the decrees rendered in those suits was actually located in the county and is the land now sought to be partitioned. Moreover, whether there was such jurisdiction to divest title should have been questioned in those suits. Chouteau v. Allen, 70 Mo. 290 (p. 353). (4) The statute of limitations has no application to the case at bar. It applies to actions for the "recovery" of lands or possession. R. S. 1889, sec. 6764. Moreover, it does not exclude matters of defense. Nichol v. Tinsley, 69 Mo. 442; Sebree v. Patterson, 92 Mo. 451. (5) A purchaser at execution sale is a purchaser from the judgment debtor within the meaning of the recording acts of the state and is protected to the same extent as other purchasers against prior unrecorded conveyances. Draper v. Bryson, 26 Mo. 108; Vance v. Corrigan, 78 Mo. 94. And a purchaser without notice from a person having notice of an unrecorded conveyance prior to his own, is protected by the recording acts. Freeman on Executions, sec. 336; Lee v. Cato, 27 Ga. 637; Chouteau v. Jones, 11 Ill. 300; Morse v. Cuntis, 140 Mass. 112. (6) In suits for partition the finding of the trial court on disputed questions of fact concerning the title will not be set aside on appeal. Earl v. Hart, 89 Mo. 263.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is an action for the partition of certain lands in St. Louis county. From the judgment rendered, Mrs. J. G. Antisdel, whose husband is joined with her as a matter of form, she being the real party in interest, appealed.

Mrs. Antisdel claims title to two one thirty-sixths of the land, which were adjudged by the trial court to belong to plaintiff.

As to one of the interests in question both plaintiff and defendant claim title under John Baker, deceased, who was the father of Mrs. Antisdel. Her claim to this interest is under a deed from her father, dated July 19, 1878, and recorded in the recorder's office of the city of St. Louis. This deed was never recorded in St. Louis county where the land lies.

The claim of Mrs. Antisdel to the other one thirty-sixth interest is as the sole and only heir of her deceased mother, Mrs. Thomasine H. E. Baker, from whom she claims to have derived the title as follows:

First. By deed from John D. Davis to Garland Pollard, dated January 22, 1879, and recorded in the city of St. Louis. This deed was never recorded in the county of St. Louis.

Second. An agreement between John Baker and John D. Davis, as follows:

"Memorandum of agreement between John Baker of the first part and John D. Davis of the second part, entered into for the purpose of settling and adjusting all differences growing out of a transfer by Robert Baker to the party of the first part of his interest in the estate of Jesse G. Lindell, deceased, and of certain suits pending in relation to and growing out of said transfer.

"1. The party of the first part is to obtain a conveyance from Wilfred W. Wiggins and wife by quitclaim deed of all the right and title which he acquired in the estate of Jesse G. Lindell, deceased, by and from said John Baker, of record in the recorder's office for the city of St. Louis, in book 574, page 79, the same to be conveyed to the party of the second part, the party of the first part to release all incumbrances on the same.

"2. The party of the second part and wife to convey by quitclaim to the party of the first part or to such person as he may designate, one undivided half of the said interest of Robert Baker in the estate of Jesse G. Lindell, excepting the interest in the property on Franklin avenue, now occupied and leased by the firm of George P. Plant & Company, being tract number 11, mentioned in said deed from Robert Baker to John Baker, and having a front of seventy-five feet on the north side of Franklin avenue, between Fifth and Sixth streets, in city block 138.

"3. The suit of Chadwick v. John Baker, as garnishee, pending in circuit court room number 5, to be dismissed by plaintiff, defendant waiving allowance of garnishee fee. The suit of Robert Baker, plaintiff in error, v. E. G. Chadwick, defendant in error, pending in court of appeals, to be affirmed or otherwise disposed of in such manner and at such time as may be thought advisable by said John D. Davis.

"The suit of John D. Davis v. John Baker, Robert Baker, Sanguinette, W. W. Wiggins, to be dismissed by plaintiff on request of the party of the first part, said cause being in St. Louis circuit court.

"4. The judgment in the case of E. G. Chadwick v. Robert Baker, in the circuit court, is not to be used in any manner to disturb or interfere with the lands to be conveyed by the party of the second part, as herein provided, or any interest or title therein.

"5. The conveyance herein provided for to be executed as soon as practicable, and the suits above mentioned are to remain as they now stand until the conveyances are executed and delivered, December 27, 1878.

(Signed)

"John Baker.

"John D. Davis."

Third. A "Declaration of Trust," made by Garland Pollard, bearing date November 1, 1879, which reads as follows:

"Whereas, John D. Davis and wife, of the city of St. Louis, and state of Missouri, by their deed of January 22, 1879, recorded in the recorder's office of the city of St. Louis, in book number 621, page 157, conveyed to the undersigned, Garland Pollard, of the city of St. Louis, an undivided one eighteenth part of an undivided one half of the real estate devised by the late will and testament of Jesse G. Lindell, deceased, being one undivided one half of the right, title, and interest acquired by Robert Baker in and to the estate of Jesse G. Lindell by his said will.

"Now, therefore, these presents witness: That I hold the property conveyed by said deed for the uses and purposes following: that is to say, I am to hold the same until the death of Mrs. Jemima Lindell, who has a life estate therein (unless it should be deemed advisable to dispose of the same before that time); upon her death I am to sell said property to the best advantage and dispose of the proceeds of the sale as follows:

"First. Pay the costs and expenses of executing this trust.

"Second. Pay to the undersigned the sum of five hundred and seventy-five dollars ($ 575), with interest from date at the rate of eight per cent per annum.

"Third. Pay to Mrs. Thomasine H. E. Baker the sum of seven thousand, four hundred and twenty-five ($ 7,425) dollars, with interest from date at the rate of eight per cent.

"Fourth. Pay the undersigned the sum of twelve hundred and twenty-six ($ 1,226.60) dollars and sixty cents, with interest from date at the rate of eight per cent.

"Fifth. Pay the balance to Mrs. Mary A. Baker.

"Witness my hand and seal this first day of November, 1879.

(Signed)

"Garland Pollard."

Neither said "agreement" nor the "declaration of trust" were ever recorded in the county or city of St. Louis.

Plaintiff claims to have acquired the title to said two...