Long v. Palisades Bank
| Citation | 198 S.W. 1129 |
| Decision Date | 03 December 1917 |
| Docket Number | No. 12555.,12555. |
| Parties | LONG v. PALISADES BANK et al. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Worth County; John M. Dawson, Judge.
"Not to be officially published."
Bill by Newton Long against the Palisades Bank and others, to enjoin the sale of land under execution. Judgment for defendants, and plaintiff appeals. Reversed.
Kelso & Kelso, of Grant City, for appellant. John Ewing, of Grant City, for respondents.
This proceeding was begun by bill in equity. Defendant Golding is the sheriff of Worth county. A demurrer to the bill was sustained by the trial court on the ground that no cause of action was stated, and plaintiff appealed.
The facts, as disclosed by the petition, are that Charles Freemeyer died, the owner of certain lands in Worth county; Daniel, a son, inherited the one-eighth thereof; Daniel was a nonresident, and immediately after his father's death sold his interest in the land to the plaintiff (subject to the widow's lifetime estate), she then being, and continuously since has been, in possession of the lands. Daniel was largely indebted to the defendant bank, which a few days after plaintiff purchased the land attached it, attacking the transfer from Daniel to plaintiff, alleging, among other things, the sale was made to "hinder, defraud, and delay his creditors." A judgment was rendered against Daniel for $3,114.98, an execution issued to the defendant sheriff, who levied upon and advertised the land for sale. Plaintiff thereupon filed his petition in equity against the sheriff, praying that he be enjoined from making the sale so advertised, on the ground that it would cast a cloud on his title.
Prior to the revision of 1899, there was no statute in this state authorizing an injunction to stay a sale of real estate under an execution on the grounds that such sale would cast a cloud upon the title. Drake v. Jones, 27 Mo. 428, 433; Kuhn v. McNeil et al., 47 Mo. 389. To remedy this the Legislature has expressly authorized such proceeding. Section 2534, R. S. 1909. By this statute it is provided:
"The remedy by writ of injunction or prohibition shall exist in all cases where a cloud would be put on the title of real estate being sold under an execution against a person, partnership or corporation having no interest in such real estate subject to execution at the time of sale."
It is said in Payne v. Daviess County Savings Ass'n, 126 Mo. App. 593, 595, 105 S. W. 15, 17, that:
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Rookery Realty, Loan, Investment & Building Company v. Johnson
...title as formerly defined in order to enjoin the sale of A's land under an execution against B. [Payne v. Bank, 126 Mo.App. 593; Long v. Bank, 198 S.W. 1129.] In cases, however, the injunction was allowed on the ground that such cloud as formerly defined would be cast upon the plaintiffs' t......
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Madden v. Fitzsimmons
... ... Co. v. Ferry (Mo.), 108 S.W.2d 21, 24; Mathias v ... Arnold (Mo. App.), 178 S.W. 264; Long v. Palisades ... Bank (Mo. App.), 198 S.W. 1129; Rookery Loan & Inv ... Co. v. Johnson ... ...
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Madden, Adm'R v. Fitzsimmons and Janosik
...no such conveyance as that upon which plaintiff counted in seeking to prevent the casting of a cloud upon his title. [Long v. Palisades Bank (Mo. App.), 198 S.W. 1129.] There is the further suggestion by defendants in error that the question raised by plaintiff's second amended petition is ......
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Rookery Realty, Loan, Inv. & Bldg. Co. v. Johnson
...to enjoin the sale of A.'s land under an execution against B. Payne v. Daviess County Say. Ass'n, 126 Mo. App. 593, 105 S. W. 15; Long v. Bank, 198 S. W. 1129. In those cases, however, the injunction was allowed on the ground that such cloud as formerly defined would be cast upon the plaint......