Mahen v. Tavern Rock

• Decision Date: 31 March 1931
• Docket Number: 28998
• Citation: 37 S.W.2d 562,327 Mo. 391
• Parties: Josephine C. Mahen, Appellant, v. Tavern Rock
• Court: Missouri Supreme Court

37 S.W.2d 562

327 Mo. 391

Josephine C. Mahen, Appellant, v. Tavern Rock

No. 28998

Supreme Court of Missouri

March 31, 1931

Appeal from Franklin Circuit Court; Hon. R. A. Breuer Judge.

Reversed and remanded (with directions).

Benjamin J. Klene for appellant.

"Notice in writing should be given a defendant in an execution of a sale thereunder, where the execution was issued to and sale made in a county other than that in which defendant resides or judgment was rendered." Young v. Schofield, 132 Mo. 650. "Where the defendant in an execution is not a resident of the county in which the land sought to be sold is situated, the plaintiff in the execution should give notice to the defendant of the issuing of same." Ray v. Stobbs, 28 Mo. 35; Harris v. Chouteau, 37 Mo. 165. The sale of plaintiff's interest in the Franklin County property here involved, was sold without a compliance with Sections 1651 and 1652, and hence same is void, and the sale should be set aside on this as well as other grounds.

Booth & Booth and Taylor R. Young for respondent.

The act of plaintiff in paying the balance due on said judgments long after the sale under execution, and accepting credit for the purchase price of the property in controversy sold under execution, is a recognition on her part of the validity of said judgments, and she is estopped to now make any different claim. Curtis v. Moore, 162 Mo. 453; Mitchell v Smith, 14 S.W.2d 47; Longworth v. Aslin, 106 Mo. 155; Perry v. Hill, 75 Mo. 503; Snodgrass v Emery, 66 Mo.App. 467.

Sturgis, C. Seddon and Ferguson, CC., concur.

OPINION

STURGIS

This suit is in two counts, one in ejectment and the other to determine title to a one-seventh interest in one hundred and twenty acres of land in Franklin County Missouri. Plaintiff claims title to this one-seventh interest under the will of her mother, Mary Orth. The defendant has title to the other six-sevenths, acquired from the other heirs of Mary Orth, and by its answer asserts title to this disputed one-seventh under and by reason of a sheriff's sale under execution and sheriff's deed purporting to convey this one-seventh which otherwise belongs to this plaintiff. The validity of the sheriff's sale and deed is the question at issue.

Both the pleadings and evidence show that Taylor R. Young, a lawyer of St. Louis, brought suit and obtained three judgments, all of the same date, in a justice of the peace court of the city of St. Louis. Young then caused certified copies of these judgments to be filed and recorded in the office of the clerk of the circuit court of said city, as provided by Sections 2850 and 2851, Revised Statutes 1919. For the purpose of making such judgments a lien on plaintiff's one-seventh interest in the Franklin County land, he then caused certified copies of these transcript judgments to be filed and recorded in the office of the clerk of the Circuit Court of Franklin County, as provided by Section 1595, Revised Statutes 1919. As the basis of its title, the defendant's amended answer further says:

"And in due course he (Young) caused executions to be issued on said judgments by the Clerk of the Circuit Court of the County of Franklin, State of Missouri, and placed the same in the hands of the Sheriff of Franklin County, State of Missouri, and said Sheriff of said Franklin County did, in obedience to said executions, levy upon and duly sell all the right, title and interest of the plaintiff in and to the property described in her said petition, and at said sale the said Taylor R. Young, being the highest and best bidder, purchased the interest of this plaintiff at said execution sale, and at said sale the interest of said plaintiff in said real estate was purchased by the said Young and said Sheriff of Franklin County, Missouri, executed in due form of law a deed conveying the interest of the plaintiff to the said Young in and to the real estate described in plaintiff's petition, and the said Young thereby became the legal and equitable owner of the interest of the plaintiff in and to the real estate described in said petition."

The notice of the levy under the execution, the sheriff's report of sale, and the sheriff's deed conveying to Taylor R. Young all the right, title and interest of this plaintiff in the land in question were put in evidence as constituting defendant's muniments of title, all of which show a sheriff's sale of the said land in dispute under an execution issued out of the clerk's office of the Circuit Court of Franklin County, Missouri, on the transcript judgments of the justice of the peace in the city of St. Louis.

There was some oral evidence offered by both parties, but under the view we take of the case, we need not mention same except incidentally. The court found the issues for defendant and entered judgment, a certified copy of which has been filed here. From this we find that the trial court found for defendant on the ejectment count of the petition and adjudged that plaintiff take nothing thereby; that on the second count the court found and adjudged that defendant is the owner in fee of the land in question and that plaintiff has no right, title or interest therein. The plaintiff took the necessary steps for an appeal and same was granted to this court.

Though there is filed here a printed abstract of the record by appellant and an additional abstract of the record by respondent which merely supplies some additional matter, the case is very imperfectly and irregularly presented under our rules and the decisions of this court for printing and filing abstracts of the record and what they should contain. No objection, however, has been made on this score and the correctness of the statements of the parties as to what the record really shows and as to what the essential facts are, is not challenged. In fact, the essential facts of this case appear from admissions made in the pleadings.

I. Plaintiff claims that there is a fatal defect in the judgment rendered in the justice of the peace court in the city of St. Louis wherein Taylor R. Young was plaintiff and Josephine C. Mahen, this plaintiff, was defendant, but we will consider such judgment as being regular and valid. The plaintiff in that judgment properly filed a transcript of same in the office of the clerk of the Circuit Court of the City of St. Louis, as provided by Section 2850, Revised Statutes 1919, and when that was done, such judgments, according to Section 2851, "from the time of filing the transcript, shall have the same lien on the real estate of the defendant in the county as is given to judgments of circuit courts, and shall be under the control of the court where the transcript is filed; may be revived and carried into effect in the same manner and with like effect as judgments of circuit courts, and executions issued thereon may be directed to and executed in any county in this State." It was also proper for plaintiff in that judgment to have a certified copy of the transcript of the justice of the peace judgment, certified by the Clerk of the Circuit Court of St. Louis, filed and recorded in the office of the Clerk of the Circuit Court of Franklin County, as was here done. The effect of so doing was to make such judgment of the justice of the peace a lien upon the real estate of the judgment defendant in Franklin County. [Sec. 1595, R. S. 1919.]

The filing of a certified copy of the justice of the peace judgment in the circuit court of the county (City of St Louis) where rendered has the effect of making such judgment, in most respects at least, a judgment of the circuit court of that county or city, and same "shall be under the control of that court, and execution shall issue from that court to any other county in the State." [Sec. 2851,...