Morgan v. Bouse

• Decision Date: 31 July 1873
• Citation: 53 Mo. 219
• Parties: WILLIAM M. MORGAN, Defendant in Error, v. FREDERICK BOUSE, Plaintiff in Error.
• Court: Missouri Supreme Court

53 Mo. 219

WILLIAM M. MORGAN, Defendant in Error,

v.FREDERICK BOUSE, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1873.

Error to Henry Court of Common Pleas.

J. Ladue, for Plaintiff in Error.

I. Defendant in the execution had no equity which was vendible by execution sale. (Rogers vs. Carey, and authorities there cited, 47 Mo., 232.)

II. “A sheriff's deed operates only on the existing title, and does not pass a subsequently acquired title.” (White vs. Davis, 50 Mo., 333.)

McBeth & Price, for Defendant in Error.

I. The statute is imperative that “the demurrer shall distinctly specify the grounds of objection;” and unless it does so, the demurrer “should” be disregarded. (See McClurg vs. Phillips, 49 Mo. 315; Alnutt vs. Leper, 48 Mo., 319.)

II. The petition alleges that plaintiff in error purchased the land, paid the purchase money, and was in the actual possession of the lands. Hence, he had an interest in the lands subject to sale on execution.

III. Jones & Eli were trustees of Bouse, holding the bare legal title for him; (Hill Trust. side page 171, also Sto. Eq. Jur., Vol. 1, § 790, 2nd. Vol. § 1212,) and Morgan at the execution sale became subrogated to his right; and Jones and Eli became trustees of Morgan. (Rankin vs. Harper, 23 Mo., 579; Dunnica vs. Coy, 24 Mo., 167; Phillips vs. Edmonson, 17 Mo., 579; Hatch vs. Wagner, 15 Ill., 127.)

SHERWOOD, Judge delivered the opinion of the court.

Morgan filed his petition in the nature of a bill in chancery in the Henry County Court of Common Pleas against Bouse, alleging in substance that the latter had in the year 1860, purchased certain land of one Jones and of Eli, had paid the purchase money and taken possession of the land so purchased, but that by mistake, Jones and Eli failed to convey the land actually purchased, and taken possession of, but conveyed other and different land, which neither Jones nor Eli intended to sell nor Bouse intended to buy; that in 1863, judgment was rendered in the Henry Circuit Court in favor of Blanton and against Bouse, for a certain sum; that execution issued on that judgment, and was levied on the land, which defendant had purchased, and of which he was at the rendition of the judgment in the actual possession, and the same was sold under said execution and levy, while defendant was still in the possession; that at such sale, plaintiff became the purchaser of all the right title, estate and interest of defendant in the land, and shortly after, receiving a sheriff's deed therefor, entered into the peaceable possession of the land so purchased by him at execution sale; that defendant never had had recorded the deeds which he procured from Jones and Eli at the time of his purchase in 1860; but long after plaintiff had taken possession of the land purchased by him, at sheriff's sale, the defendant surrendered to Jones and Eli, the deeds which misdescribed the land, and for the original, and for no additional consideration, received from them new deeds containing a correct description of the land actually bought by the defendant, being the same land of which he had under his purchase taken possession, as above recited; that the deeds last mentioned were executed by Jones and Eli, for the purpose of correcting the mistakes in the deeds which were surrendered. The petition concludes with a prayer, that defendant be compelled to convey to plaintiff, the legal title thus by him acquired, and in default thereof, that the court would accomplish the same end by its decree. To this petition, the defendant demurred, assigning substantially as grounds therefor: First--That there were no equities in the petition, which entitled the plaintiff to the relief prayed for; Second--That the petition showed that the defendant, at the time of the execution sale, had no interest in the land which could be sold under execution sale; Third.--That it appeared from the face of the petition, that it stated no facts sufficient to constitute a cause of action. The petition was held sufficient, and the defendant declining to plead further, a final decree was entered for plaintiff, to reverse which this cause comes here on writ of error. There was nothing objectionable in the demurrer, as to matter of form, and it sufficiently raised the points which the pleader was desirous of having considered. When the petition fails to state a cause of action, a demurrer assigning this ground, in the language of the statute, has been held sufficient. (Bank of Mo. vs. Haden, 35 Mo., 358.) If,...