Mayes v. Cunningham

• Decision Date: 25 June 1918
• Docket Number: No. 2260.,2260.
• Citation: 204 S.W. 404
• Parties: MAYES v. CUNNINGHAM.
• Court: Missouri Court of Appeals

204 S.W. 404

MAYES v. CUNNINGHAM.

No. 2260.

Springfield Court of Appeals. Missouri.

June 25, 1918.

Rehearing Denied July 10, 1918.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Suit by Von Mayes, receiver of the Citizens' Bank of Hayti, a corporation, against Clinton H. Cunningham. From judgment for plaintiff, defendant appeals. Affirmed.

C. G. Shepard, of Caruthersville, for appellant. B. L. Guffy and Von Mayes, both of Hayti, for respondent.

STURGIS, P. J.

This a suit for conversion of certain furniture and fixtures used in the post office at Caruthersville, Mo. The defendant claimed to own such property as part of the realty he purchased at execution sale. In the case of Cunningham v. Von Mayes, 194 Mo. App. 56, 182 S. W. 1059, this court held that the property now in controversy was and is personalty and the title thereto did not pass or vest in this defendant by reason of his purchase and sheriff's deed to the land. The post office building and the so-called fixtures therein originally all belonged to Sallie M. Roberts, and the decision of this court just mentioned was that said Roberts still owned such fixtures and same were subject to be sold on execution against her. The case mentioned was an injunction wherein this defendant, claiming ownership of said post office fixtures as being part of the realty purchased on execution against Sallie M. Roberts, sought to enjoin this plaintiff and the sheriff from selling these fixtures as personalty on execution in plaintiff's favor against said Roberts. When that injunction was dissolved after hearing in this court, this plaintiff proceeded to have said property sold and become the purchaser thereof. Notwithstanding the decision of the circuit court, affirmed by this court, the defendant still assorted his ownership of said property, denying plaintiff's right to same and resulting in plaintiff's bringing suit for conversion. The plaintiff prevailed at the trial, the value of the property being assessed at $1,400 for which plaintiff had judgment. Defendant appeals, alleging numerous errors, the most important of which we will consider.

In view of our former decision, the defendant cannot be heard to claim ownership of this property; that being res judicata. This fact must be kept in mind in considering every phase of the case, and, in fact, the defendant's refusal to acquiesce in the court's adverse ruling as to his claim of title and his continued assertion of title on this appeal go to the very gist of this action and go far towards justifying the present judgment. We feel justified in saying at the outset that defendant should have acquiesced in the court's decision as to his having no title in this property, and had he done so he could and should have avoided the present suit. As it now stands, the errors asserted by defendant strike at the weakness of plaintiff's title to this property rather than being based on the strength of his own. In fact, under our former decision defendant is a total stranger to this property, since plaintiff claims title under Mrs. Roberts, the former owner, and she is not controverting the same.

The defendant asserts that the sheriff made no proper levy on or seizure of this property in selling it under the execution in plaintiff's favor and at which he purchased. If the person whose title was divested by such sale, to wit, Mrs. Roberts, or some creditor of hers, was making this complaint, we would view the same with much more favor. The defendant is making a collateral attack on that sale and collateral attacks by one seeking to justify his wrongful intermeddling with property not his own are restricted within narrow limits. The defendant claims that because the sheriff after levying on this property left it in defendant's building in charge of, and to be used by, the postmaster, there was no sufficient seizure of same to make the subsequent sale valid. To be viewed with favor, this claim should come from some creditor or purchaser claiming an intervening right or lien on the property. Such are the cases of Hopke v. Lindsay, 83 Mo. App. 85; Shanklin v. Francis, 67 Mo. App. 457; and Hobbs v. Williams, 175 Mo. App. 409, 162 S. W. 334; also, other cases cited by defendant. The sheriff levied on this property and then left it in the use and custody of the postmaster as his agent, and we are not disposed to hold such levy void merely because...