Mobley v. Nave

• Decision Date: 30 April 1878
• Parties: MOBLEY v. NAVE et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 546

MOBLEY

v.NAVE et al., Appellants.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

Ben Loan and Allen H. Vories for appellants.

1. Parol evidence was admissible for the purpose of proving that a clerical error had been made in entering the order of adjournment of the probate court, and that the adjournment was in fact to the 18th and not to the 19th. 2. Defendant Nave, being the owner of the two judgments, which were a prior lien upon the lots in controversy, and under the law having the right to subject them to the payment of his debts, and the plaintiff having no right, either legal, equitable or moral, to get the property until the debts of the ancestor were paid, the law will compel the plaintiffs to pay these debts before they can take possession of such property, and, for that purpose, equity will treat the judgments as continuing liens. Valle v. Fleming, 29 Mo. 152; Jackson v. Magruder, 51 Mo. 55; Jones v. Mack,53 Mo. 147; Honaker v. Shough, 55 Mo. 472; Grayson v. Weddle, 63 Mo. 523. If the ancestor had attempted to relieve his property from the judgment liens, the amount of the debts must have been paid. The heir surely can be in no better position than the father, as she takes the property subject to all his legal debts. From the circumstances surrounding this case, appellants contend that plaintiffs are estopped from claiming any title to said lots. 2 Story's Eq. Jur., sections 1520, 1521, 1522; Landrum v. Union Bank, 63 Mo. 48; Moreman v. Talbott, 55 Mo. 397; Collins v. Rogers, 63 Mo. 515; Evans v. Snyder, 64 Mo. 516.

John D. Strong, Bennett Pike and Wm. H. Sherman for respondents.

Upon what ground can appellants claim more than was allowed by the court? If this court should believe that defendant Nave had no notice of any infirmity in his title, that he was a bona fide purchaser of the lots in controversy, and that the purchase price was applied to discharge an existing incumbrance or charge upon the estate of Lykins, the most favorable decisions in equity hold that Nave is then only entitled to be repaid the amount of his payment,with interest,by the true owner seeking to recover the estate from such purchaser. The liability of the true owner for improvements is only for permanent improvements--not repairs merely; and this liability is founded on constructive fraud, or gross negligence, or delusive confidence held out by the true owner, not one of which grounds of liability can be said to exist in this case. At all events, Nave's equitable right to reimbursement can only exist to the extent of the charge from which his purchase at the time relieved Lykins' estate. Bright v. Boyd, 1 Story, (C. C.,) 492; Penn v. Heisey, 19 Ill. 295. Defendants are not in possession of these premises under any sale foreclosing a lien, but under an administrator's sale to pay the debts proved against Lykins' estate. Defendant Nave's equities do not embrace the full amount of the judgment held by him against Lykins. The lien of a judgment is purely statutory, depending upon statutes for its validity and vitality. The statutory limitations of the force and effect of a judgment lien are not extended by equity. Wag. Stat., p. 790, § 3; Chouteau v. Nuckolls, 20 Mo. 442; Miller v. Doan, 19 Mo. 650; Prewitt v. Jewell, 9 Mo. 723. A judgment lien upon real estate of the debtor is not jus in re; it is a right of the owner of the lien, by proper proceedings, to subject specific property to the satisfaction of the judgment, but of itself it confers no legal or equitable right to the possession of the property against which it may be enforced. Warner v. Veitch, 2 Mo. App. 463.

HOUGH, J.

This was an action of ejectment instituted November 13th, 1872. The plaintiff, Myra H. Mobley, is the only child and heir of John H. Lykins, who died intestate seized of the property in dispute. Before the death of Lykins the defendant became the owner of two judgments against him, one for the sum of $1,221.54, and another for the sum of $470.56, both rendered on the 18th of March, 1859, bearing interest at the rate of ten per cent., which were liens on the lot sued for. On petitions filed March 15th, 1862, for that purpose, the liens of these judgments were revived. The foregoing judgments were exhibited against the estate of Lykins, and the defendant Nave claims title under a sale made by the administrator of Lykins on the 18th of September, 1863, to pay the debts of the deceased. The judgments held by Nave were credited with $1,425, the amount of his bid at said sale, and he went into possession under the administrator's deed, and made some improvements. It appears from the records of the probate court that said court was not in session on the day on which the sale was made, and there was no testimony tending to show any mistake in the date of the sale as recited in the deed.

1. MISTAKE IN COURT RECORD, HOW CORRECTED; parol evidence.

Parol testimony was offered by the defendant to show that the court was in session on the 18th of September, 1863, but it was rejected by the court, and properly so. If it can be shown by parol that a court was in session on a day when the records of such court show that it stood adjourned on that day, we see no reason why it cannot also be shown by parol that a court was not in session when its records show that it...