McMurray v. St. Louis Oil Mfg. Co.

• Decision Date: 31 March 1863
• Citation: 33 Mo. 377
• Parties: WILLIAM A. MCMURRAY, Respondent, v. THE ST. LOUIS OIL MANUFACTURING COMPANY et al., Appellants.
• Court: Missouri Supreme Court

33 Mo. 377

WILLIAM A. MCMURRAY, Respondent,

v.THE ST. LOUIS OIL MANUFACTURING COMPANY et al., Appellants.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Land Court.

On the 25th day of March, A. D. 1854, plaintiff conveyed to the St. Louis Oil Manufacturing Company the lot of ground described in plaintiff's petition. The consideration for this sale was seven thousand five hundred dollars. Of this amount five thousand dollars was paid by issuing shares of capital stock of said company to plaintiff, and the balance, two thousand five hundred dollars, was to be paid on or before the first day of March, 1856, with interest from March 1, 1854, at six per cent., and a note was given of that tenor.

In order to secure the payment of the deferred purchase money, the lien of the plaintiff for this unpaid purchase money was set forth in the conveyance, and the vendor was authorized to sell the land upon thirty days' notice, to pay the debt secured. The deed was duly recorded.

On the 14th day of March, A. D. 1857, William Hassinger, president of the company, without any authority from the stockholders or board of directors of the corporation, filed a statement confessing judgment on the above described note, and thirty-four dollars and seventy-five cents, the amount of taxes paid by McMurray for the corporation. The statement did not show the consideration of the note.

Judgment was rendered on this confession in the St. Louis Court of Common Pleas, on the 14th day of February, 1857; an abstract thereof filed in the clerk's office of the Land Court February 20, 1857; execution issued thereon April 10, 1857.

After the rendition of the above judgment, other judgments were rendered in favor of other plaintiffs against the same defendants for the amounts in favor of the parties, and abstracted in the clerk's office of the Land Court as follows, to wit:

“Wm. A. Reed v. Oil Company.--Common Pleas.--Judgment, $4,558.32, Feb. 20, 1857; abstracted, Feb. 20, 1857; execution issued, Feb. 28, 1857.

W. C. Logan v. Oil Company.--Circuit Court.--Judgment, $1,019.21, March 17, 1857; abstracted April 23, 1857; execution issued, March 28, 1857.

Rees H. Jones v. Oil Company.--Before Justice Allen.--Judgment, $107.73; transcript filed with clerk of Land Court, March 24, 1857.

Humphreys, Tutt & Terry v. Oil Co.--Circuit Court.--Judgment, $1,283.97, March 27, 1857; abstracted, March 28, 1857; execution issued, April 1, 1857.

Rogers v. Oil Co.--Judgment for $173.45; abstracted, April 11, 1845; execution issued, April 11, 1857.

Illsley v. Oil Co.--Judgment, April 14, 1857, $3,035.28; abstract, April 16, 1857; execution, April 15, 1857.

Hale v. Oil Co.--Judgment for $519.43, April 15, 1857; abstracted, April 16, 1857; execution issued, April 15, 1857.”

The execution issued on the judgment in favor of Reed was levied upon the real estate described in plaintiff's petition, which was sold by the sheriff on the 15th day of April, A. D. 1857, and Humphreys, Tutt & Terry became the purchasers of the interest of the St. Louis Oil Manufacturing Company for nine thousand one hundred and fifty dollars, and the sheriff executed a deed to them.

The plaintiffs, in two of said judgments, to wit, Arthur M. Illsley and S. & J. Hale, after the payment of the money to the sheriff, moved the Court of Common Pleas to exclude McMurray from any participation in this fund of nine thousand one hundred and fifty dollars, which motion was sustained, and the court ordered the balance left, after satisfying the judgment in favor of Reed, to be applied as follows, to wit:

“1. To costs of motion, $12.50; 2. Humphreys, Tutt & Terry's judgment, $1,351.38; 3. Wm. C. Logan's judgment, $1,074.05; 4. Rogers & Noel's judgment, $182.11; 5. S. & J. Hale's judgment, $545.40; 6. A. M. Illsley's judgment, $1.287.48; 7. That the receivers appointed by the court during the pendency of the motion (Humphreys, Tutt & Terry), retain in their hands, subject to order of court, $226.66.”

Afterwards, the receivers were ordered to pay to Rees H. Jones, on his judgment, $133.33.

Plaintiff then brought this suit in the Land Court against the St. Louis Oil Manufacturing Company and Humphreys, Tutt & Terry, to foreclose under the vendor's lien retained by him.

On the trial, the plaintiff offered in evidence the deed from McMurray to the Oil Company, with the certificate of record and the note above described.

Plaintiff also offered in evidence sheriff's deed to Humphreys, Tutt & Terry.

Defendants offered in evidence the various statements of judgments rendered against the St. Louis Oil Manufacturing Company, with the dates of abstracting and the dates of the issue of execution, and the sheriff's deed to Humphreys, Tutt & Terry. Also, the confession of judgment in favor of McMurray, and the statement under which the same was rendered. They also offered in evidence the execution in favor of McMurray, with the sheriff's return. Also, the order of distribution of the Court of Common Pleas of the proceeds of the sale of the property in question under Reed's judgment.

Defendants then introduced William T. Wood as a witness, who testified that he was an attorney at law, and acted as such for Humphreys, Tutt & Terry in securing their claim against the St. Louis Oil Manufacturing Company; that he took the execution in favor of Humphreys, Tutt & Terry to the sheriff's office and found four executions there against the Oil Company. Tutt got him to examine the title before the sheriff's sale, to see what was the amount of the liens on it prior to their judgment, and make a calculation to see how much he would have to bid to save his debt. The amount which he calculated included McMurray's judgment, and the amount bid by him was sufficient to pay off all prior liens and judgments. Plaintiff's attorney, after the sale, claimed the proceeds in sufficient amount to satisfy his judgment. I aided plaintiff's attorney to obtain the same. The court decided against him, and he did not appeal from the order of distribution. The funds were distributed among the creditors having judgments subsequent to plaintiff's. He advised Humphreys, Tutt & Terry that the judgment of confession in favor of McMurray was a valid one; that he did not see McMurray or his attorney at the sheriff's sale.

No instructions were given on behalf of the plaintiff.

The following instructions asked by the defendants were refused:

“1. If the plaintiff commenced legal proceedings in the Court of Common Pleas on the note described in the petition, and a judgment was rendered in said court on said note in favor of said plaintiff and against said St. Louis Oil Manufacturing Company; that execution issued on said judgment and was delivered to the sheriff of St. Louis county; that other judgments were rendered against said company, upon which executions were issued and delivered to the sheriff of said county; that the sheriff of said county sold said premises described in the petition under the execution in favor of William H. Reed; that Thomas E. Tutt, one of the defendants, under legal advice, bid at said sheriff's sale the amount of all the judgments and costs against said company, including the said judgment in favor of the said plaintiff, and that said Tutt purchased said property at said sale at said amount, and the sheriff made a deed to him for the same; that said Tutt believed he was purchasing said property free and clear of said lien claimed by said plaintiff and employed attorneys to take legal steps to obtain payment of said claim out of the proceeds of said sheriff's sale; that said attorney took legal steps to obtain said money, then the plaintiff cannot recover.

2. Under the charter of the St. Louis Oil Manufacturing Company, the plaintiff has no lien upon the property described in the petition for the amount as claimed in said petition.”

A decree was rendered in favor of plaintiff.

Defendants then moved for a new trial, and moved in arrest of judgment, both of which motions were overruled, and they then took their appeal.

Lackland, Cline & Jamison, for appellants.

I. The act of March 12, 1849, (Acts of 1848-9, p. 18,) authorizing the formation of corporations for manufacturing, mining, mechanical or chemical purposes, provides, in § 2, that a corporation created under that act shall “be capable in law of purchasing, holding and conveying any real and personal estate...