Metzner v. Graham

• Decision Date: 31 August 1874
• Citation: 57 Mo. 404
• Parties: HERMAN METZNER, Appellant, v. ROBERT M. GRAHAM, Respondent.
• Court: Missouri Supreme Court

57 Mo. 404

HERMAN METZNER, Appellant,

v.ROBERT M. GRAHAM, Respondent.

Supreme Court of Missouri.

August Term, 1874.

Appeal from Linn County Court of Common Pleas.

C. H. Mansur, for Appellant.

I. It is said that “whenever property has been seized by an officer of the court, by virtue of its process, the property is to be considered as in the custody of the court and under its control, for the time being; and no other court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises. (Buck vs. Colbath, 3 Wal., 341; Hagan vs. Lucas, 10 Pet., 400; Taylor vs. Carryl, 20 How., 585; Freeman vs. Howe, 21 How., 450; Helmrock vs. Stark, 53 Mo., 590, and especially Mollison vs. Eaton, 16 Minn., 426.)

II. An officer decides at his peril, between two different claimants in execution. (Howard vs. Clark, 43 Mo., 344; Denton vs. Livingston, 9 Johns., 96.)

III. The mortgage showed, as a matter of law, upon its face, that it was null and void; for it permitted the mortgagor to dispose of the property in the ordinary course of his business. (Milburn vs. Wright, 11 Mo., 369; Brooks vs. Wimer, 20 Mo., 503; Reed vs. Pelletier, 28 Mo., 173; Billingsley vs. Bunce, 28 Mo., 547.)

Broaddus & Pollard, for Respondent.

I. Appellant had notice of the mortgage, and the pending of the suit of Ewing to foreclose it, and it was his duty to make himself a party thereto and have his rights litigated.

II. In selling the property the sheriff acted under the order of the Circuit Court in the suit to foreclose the mortgage. He had no discretion.

VORIES, Judge, delivered the opinion of the court.

This suit was commenced in the Common Pleas Court in Livingston county, and afterwards taken to, and tried in the Linn County Court of Common Pleas, by an agreement between the parties.

The facts of the case appear to be as follows: Artemus N. Smith, and one John A. Ewing, just before and up to the fifteenth day of October, 1870, were partners engaged in the business of selling different kinds of agricultural implements in Livingston county, Missouri, at which time they dissolved their partnership, the said Ewing selling out to the said Smith his entire interest in the implements and goods on hand, and as part of the consideration for said purchase, Smith agreed with Ewing to pay off all of the debts against the partnership, amounting to about twelve hundred dollars. In order to secure this indebtedness, Smith executed a chattel mortgage by which he re-conveyed to Ewing, all the implements purchased. The mortgage contained the following condition; “The parties hereto agree that until condition broken, said property may remain in possession of said A. N. Smith, who may sell the same by applying the purchase price to the payment of the aforesaid debts; but after condition broken, the said John A. Ewing, may at his pleasure take and remove the same, and may enter into any building or premises of said A. N. Smith, for that purpose.”

After the making of this mortgage (the said Smith still remaining in the possession of the property named,) on or about the 1st or 2nd day of January, 1871, the plaintiff commenced an attachment suit against said Smith, in the Common Pleas Court of Livingston county, in which an attachment was issued and delivered to the defendant in this suit, who was then the sheriff of Livingston county, and by virtue of said writ of attachment, the defendant as such sheriff, seized and levied upon the same property in possession of Smith, and which was named in the mortgage, and made return of the writ to the said Common Pleas Court, where said suit was pending.

After the commencement of this suit against Smith, and the levy of the attachment, the said John A. Ewing, on the 4th day of January, 1871, commenced a suit against Smith, in the Livingston Circuit Court, the object of which was to foreclose the mortgage given him on said property and have the property named in the mortgage sold to satisfy the firm debts, provided for in the mortgage.

This last named suit in favor of Ewing, was prosecuted to a judgment in the Circuit Court, on the 10th day of February, 1871, and a special execution at once issued on the same, which was delivered to the defendant as sheriff of Livingston county, and which commanded him to sell said property (which was still in his custody by virtue of the levy of the attachment in favor of the plaintiff aforesaid) for the satisfaction of the judgment recovered in said foreclosure suit. Under this special execution and judgment of foreclosure, the defendant, as such sheriff, sold the attached property in his hands, on the 7th of March, 1871, for the sum of $1,394.83, and on the 24th of July, 1871, returned this special execution to the Livingston Circuit Court, appropriating $1,300, in satisfaction of said execution and cost. The residue for which the property was sold, being $94.58, was claimed by Smith as being exempt from execution, and paid to him by said defendant as such sheriff.

On the 22nd day of April, 1871, a judgment was recovered in the Common Pleas Court of Livingston county, in favor of plaintiff, in the attachment suit against Smith, for about twelve hundred dollars, ordering that the attached property be sold by the defendant as sheriff for the satisfaction of the same; and on the same day a special execution was issued thereon and delivered to the defendant as sheriff, commanding him to sell the attached property in his hands to satisfy said last named judgment.

This last execution was returned to the Common Pleas Court, with the indorsement thereon, that the property had been sold and the proceeds paid out on the special execution issued on the judgment of the Circuit Court in the foreclosure suit as herein before stated.

This suit is brought to recover of the defendant the amount of the judgment rendered in his favor against Smith, for the failure of the defendant, as sheriff, to safely keep and sell the property attached in satisfaction of the judgment, and for failing to obey and return the execution in conformity to the command thereof; the plaintiff charging that the property attached was of sufficient value to have fully paid said special execution, etc.

The defendant set up in his answer the sale of the property under the execution in favor of Ewing & Co., as a defense to the action.

The plaintiff in his replication insisted that the facts so set up in the answer were no defense to the action, and further averred that the mortgage executed in favor of Ewing, upon which the judgment was rendered was void as to the creditors (the plaintiff being a creditor) of Smith, setting forth the condition of the mortgage herein before set forth, which he insisted rendered the mortgage void on its face.

On the trial the plaintiff offered evidence tending to prove that after the execution of his mortgage to Ewing, Smith retained the possession of the property mortgaged, and continued to sell off the same at the same place where it had before been kept, in his usual course of business. This evidence was objected to by the defendant, on...