Miller v. McCoy

• Decision Date: 31 July 1872
• Citation: 50 Mo. 214
• Parties: BENJAMIN MILLER, Respondent, v. JOHN C. MCCOY, Appellant.
• Court: Missouri Supreme Court

50 Mo. 214

BENJAMIN MILLER, Respondent,

v.JOHN C. MCCOY, Appellant.

Supreme Court of Missouri.

July Term, 1872.

Appeal from Kansas City Court of Common Pleas.

Karnes and Ess, for appellant, cited Smith v. Ross, 7 Mo. 465; Murphy v. Williams, 1 Ark. 376; Woodford et al. v. Howell, 2 Ark. 1; Ferguson v. Ross, 5 Ark. 517; Kimball v. Merrick, 20 Ark. 12; Eaton & Betterton v. Pennywit, 25 Ark. 144.

C. H. Thornton, for respondent, cited Lindell v. Bank, 4 Mo. 228, reaffirmed in Rutger v. Bank, 4 Mo. 315; Griffin & Kinote v. Samuels, 6 Mo. 51; Weber v. Schmeisser, 7 Mo. 600,reaffirmed in Ramsey v. Goodfellow, 7 Mo. 594; Latrielle v. Dorleque, 35 Mo. 233; Baker & Dalton v. Lusk, 16 Mo. 111; Landes v. Perkins, 12 Mo. 254; Landes v. Brant, 10 How. 359, 371; Bernecker v Miller, 44 Mo. 111; Childs v. Shannon, 16 Mo. 336; Chouteau v. Nuckolls, 20 Mo. 445; Cooper v. Reynolds, 10 Wall. 308; Woods, Christy & Co. v. Mosier, 22 Mo. 335; Samuels v. Shelton, 48 Mo. 450.

ADAMS, Judge, delivered the opinion of the court.

This was an action brought by the plaintiff, as assignee of Charles H. Thornton, on the covenants in a deed from the defendant to Thornton for certain real estate in Kansas City. The consideration mentioned in the deed was $2,500, and the breach alleged was eviction by superior title. The answer denied all the allegations of the petition, but set up no counter-claim or other defense.

The plaintiff, to maintain his case, introduced the record of proceedings had to enforce a prior vendor's lien against the property which resulted in a judgment and sale of the property, and showed that the purchaser took possession under this alleged paramount title. There was some defect in the service of notice in that case on some of the parties, but the entry of judgment shows that all the parties appeared by their attorneys, and submitted the case for trial, etc.

The proof showed that, although the consideration is mentioned as money in the deed sued on, it really was not money, but lands in the State of Kansas, rated by the parties at $2,500. Proof was introduced to show the value of the Kansas lands, and the defendant offered to prove by parol that the title to the Kansas lands were defective, that they were Indian lands, etc. This proof was rejected by the court. The jury found a verdict for the amount of the purchase-money and interest.

1. The record of the foreclosure of the vendor's lien was properly admitted. The recitals of the appearance of the parties is conclusive, at least in a collateral proceeding. Whatever may be the rulings of other courts, it is well settled in this State that such an appearance is sufficient to warrant a personal judgment against the defendants. (Lindell v. Bank, 4 Mo. 228; Rutger v. Bank, 4 Mo. 315; Griffin & Kinote v. Samuels, 6 Mo. 51; Weber v. Schmeisser, 7 Mo. 600; Latrielle v. Dorleque, 35 Mo. 233; Landes v. Perkins, 12 Mo. 254.)

2. The evidence to prove the value of the Kansas lands was admissible for the purpose of showing that the real consideration was of the amount stated in the deed. But the title to these lands was not...