Macklin v. Allenberg

• Decision Date: 10 March 1890
• Citation: 100 Mo. 337,13 S.W. 350
• Parties: MACKLIN v. ALLENBERG et al.
• Court: Missouri Supreme Court

13 S.W. 350

100 Mo. 337

MACKLIN v. ALLENBERG et al.

Supreme Court of Missouri.

March 10, 1890.

DECREE TO CONVEY LAND — REVERSAL — INNOCENT PURCHASERS.

1. In ejectment it appeared that defendant's grantor had purchased the land in dispute at an execution sale against plaintiff's grantor; that prior to such sale plaintiff's grantor had executed a trust-deed, conveying the property for the use and benefit of his wife. Defendant's grantor brought suit in equity to set aside the trust-deed, and obtained a decree declaring the deed null and void, and vesting all the right, title, and interest in the property in himself. Held, that under Rev. St. Mo. 1879, § 3692, providing that, in all cases where judgment is given for the conveyance of real estate, the court may by such judgment pass the title of such property without any act to be done on the part of the defendant, such decree was sufficient to pass the title to the property to defendants' grantor.

2. And in such case it further appeared that the final decree fixing the title in defendants' grantor was rendered in October, 1878, and that he obtained a writ of possession thereunder; that in March, 1879, he executed a deed of trust, under which defendants acquired title; that in a year thereafter, lacking a few days, plaintiff's grantor sued out a writ of error, under which the decree first mentioned was reversed. Held, that while the reversal of he decree entitled the plaintiff's grantor to restitution, as against defendants' grantor, it did not affect the rights of an innocent third person claiming under him; the writ of error being a new action.

3. And in such case, where defendants' grantor had alleged that the trust-deed from plaintiff's grantor was contrived and made to defraud creditors, a finding to that effect, and a judgment declaring the deed null and void, confirmed the title of defendant's grantor as a purchaser at the execution sale, without any decree to that effect.

Appeal from St. Louis circuit court.

Action of ejectment by Marie J. Macklin against August Allenberg and others. There was judgment for plaintiff, and defendants appealed.

D. T. Jewett, for appellants. T. J. Rowe, for respondent.

BLACK, J.

This is an action of ejectment for a lot in the city of St. Louis. The judgment of the circuit court was for the plaintiff, and defendants appealed. Patrick Macklin is, for all the purposes of this appeal, conceded to be the common source of title. On the 14th May, 1873, he conveyed the lot to F. L. Haydell in trust for the use and benefit of Ann Macklin, the wife of said Patrick Macklin. The plaintiff put in evidence other deeds, showing a perfect and complete title in her, but they are all dated subsequent to the decree hereafter mentioned. Michael Kinealy purchased the lot in December, 1873, at a sale under an a execution issued on a judgment against Patrick Macklin and in favor of Ferguson; and in February, 1874, Kinealy commenced a suit against Macklin and his wife and Haydell as trustee, to set aside the deed of trust to Haydell, on the ground that the same was made in fraud of the creditors of Patrick Macklin. Notice of that suit was duly filed in the office of the recorder of deeds. In October, 1878, Kinealy obtained a decree which declared the deed to Haydell to be nuil and void and of no effect, as against Kinealy as purchaser at the execution sale; and after describing the property the decree goes on and vests all the right, title, and interest of the defendants to the property in the plaintiff, and the plaintiff is also awarded a writ of possession. A copy of this decree was duly recorded in the recorder's office. The defendants in that case filed a bill of exceptions in November, 1878, but took no appeal. Kinealy as put in possession by a writ issued pursuant to the decree, and thereafter in March, 1879, he conveyed the property to Southerland in trust to secure his note for $2,000 payable to defendant Sanderson. The defendants acquired their title at a sale under this deed of trust. In March, 1880, Macklin and wife, and her trustee, Haydell, sued out of the St. Louis court of appeals a writ of error in the former suit of Kinealy against them. That court affirmed the judgment of the circuit court, but the judgment of the court of appeals was reversed, and the bill dismissed by this court in 1886. 89 Mo. 433.

1. The plaintiff assails the decree rendered in the case of Kinealy against Macklin and wife, and her trustee, Haydell, on the ground that the circuit court could not vest the title of the defendants in the plaintiff. A court of competent jurisdiction, it is insisted, can by its decree find and declare that a title had been acquired by operation of law or by the act of he parties, but the decree cannot be made a mode of transferring title. To all this the statue furnishes a sufficient answer. It declares: "in all cases where judgment is given for the conveyance of real estate, or the delivery of personal property, the court may, by such judgment, pass the title of such property without any act to be done on the part of the defendant." Section 3692, Rev. St. 1879, and section 2760. It is perfectly competent for the circuit court, as a court of equity, to divest one party to the suit of the title to real estate, and to invest it in another. The power of the court to pass the title by its decree to the party to whom the law says it belongs cannot be doubted. The statues is too plain, and the practice under its too well established, to admit of question; so that it is not essential to look beyond or outside of he statute itself.

2. But there was no necessity for any such a decree. Kinealy in his petition alleged, in legal effect, that the deed from Patrick Macklin to Haydell was contrived and made to defraud creditors, and so the circuit court found from the evidence; and the judgment declaring the deed to be void and of no effect, as against Kinealy, left him with a clear and unclouded title. The balance of the decree, save that part which awards a writ of possession, is mere surplusage.

3. As we have said, the final decree in favor of Kinealy was rendered in October, 1878, and he obtained possession by a writ thereunder. Thereafter, and in March, 1879, he executed the deed of trust, under which the defendant acquired title. A year thereafter, lacking four days, the writ of error was sued out, and the question is whether the defendant's title is affected by the subsequent reversal of the decree. When this court reversed the decree and dismissed the plaintiff's bill, the defendant became entitled to restitution, and as against Kinealy they were entitled to have the property itself restored. Gott v. Powell, 41 Mo. 417. In that case it was said: "Where a man recovers land in a real action, and takes possession or acquires title to land or goods by sale under execution, and the judgment is afterwards reversed, so far as he is concerned his title is at an end, and the land or goods must be restored in specie, — not the value of them, but the things themselves. There is an exception where the sale is to a stranger bona fide, or where a third person has bona fide acquired some collateral right before the reversal." In Vogler v. Montgomery, 54 Mo. 577, Nussberger recovered a judgment against Vogler, and purchased the property thereunder. Nussberger conveyed it to Montgomery in...