Murphy v. Smith

• Decision Date: 30 April 1885
• Court: Missouri Supreme Court
• Parties: MURPHY v. SMITH, Appellant.^a1

86 Mo. 333

MURPHY

v.SMITH, Appellant.^a1

Supreme Court of Missouri.

April Term, 1885.

Appeal from Maries Circuit Court.--HON. A. J. SEAY, Judge.

REVERSED.

Edwin Silver for appellant.

(1) The facts set up in defendant's answer are supported by the evidence and entitle him to equitable relief. Bresnehan v. Price, 57 Mo. 424; Eck v. Hatcher, 58 Mo. 235; Hopkins v. Williams, 58 Mo. 201; Major v. Buckley, 51 Mo. 227; Massey v. Young, 73 Mo. 260. (2) The answer distinctly charges knowledge of the fraud in procuring the judgment against William Ammerman on plaintiff, but he failed to appear and testify to his own innocence, which must be taken as a strong circumstance against him. Mayberry v. McClurg, 74 Mo. 575. (3) The gross inadequacy of the price for which the land was sold at the sheriff's sale warrants equitable interference. Durfee v. Moran, 57 Mo. 379; H. & St. Jo. Ry. v. Brown, 43 Mo. 294; Parker v. Railroad, 44 Mo. 415. (4) The circumstances of this case show an equitable satisfaction of the judgment under which the land was sold before such sale. Where a judgment is satisfied a sale under it will convey no title, not even to a purchaser without notice. Reed v. Austin, 59 Mo. 234; Durette v. Briggs, 47 Mo. 356. (5) Nor was the judgment and sale good because Ammerman had failed to pay the costs. The proper way to collect merely the costs in a cause is by fee bill under Revised Statutes, section 5595. (6) Defendant was in possession of the premises in controversy under a deed of record when A. M. Murphy purchased and also when plaintiff bought from the latter. These facts were sufficient to put A. M. Murphy, plaintiff, upon inquiry as to any facts affecting their title. Sergeant v. Ingersoll, 7 Pa. St. 340.Smith & Krauthoff and L. F. Parker for respondent.

(1) The evidence does not present a case which entitles the defendant to relief upon equitable grounds. The judgment, execution and sheriff's deed under which the plaintiff claims are regular upon their face. There is no positive evidence that A. M. Murphy had any reason to suspect that the judgment and sale were not what they appeared to be. On the contrary, he positively denies any knowledge and his statements are supported by those of disinterested parties who were present at the sale. This is not a case of a sale under a judgment that has been satisfied. (2) The defendant has been guilty of such inexcusable laches as to debar him of whatever right to equitable relief he once possessed. Quinlan v. Keiser, 66 Mo. 604; Bliss v. Prichard, 67 Mo. 181; Kelly v. Hurt, 74 Mo. 561. (3) The defendant does not offer to do equity by restoring the purchase money paid at sheriff's sale; he cannot, therefore, claim equity. 1 Story's Eq. (12 Ed.) sec. 642; Whelan v. Reilly, 61 Mo. 565. (4) Plaintiff having purchased from a purchaser without notice, takes the latter's title just as he had it. Halsa v. Halsa, 8 Mo. 303; Lemay v. Ponperez, 35 Mo. 71-76; 1 Story Eq. Jur. (12 Ed.) secs. 409, 410; 3 Wash. Real Prop. (4 Ed.) 339; 1 Dan. Neg. Inst. (3 Ed.) sec. 803.

MARTIN, C.

The plaintiff sued in ejectment, and the defendant in his answer pleaded facts constituting an equitable defence, and prayed for affirmative relief against the title asserted against him.

It appears from the evidence, in which there is no conflict, that one R. E. Hutchison, as executor of Daniel Bailey, held a note against William Ammerman and Joseph Ammerman, dated September 25, 1872, payable in the sum of $196.69, one day after date, which note had been executed and delivered to said Hutchison for a debt due the estate of said Bailey by William Ammerman, one of the makers. On the twenty-third of September, 1874, Hutchison, in his individual capacity, brought suit on said note against the makers thereof. Due service was obtained on both defendants. Before judgment on the note by default or otherwise, Hutchison and Ammerman entered into an agreement for a settlement of the debt and dismissal of the suit. At the time of this agreement, one G. W. Shinkle, as curator of Bailey's minor children, held a note against Hutchison, the executor of the estate. A statement of the amount of the note in suit, with interest, was handed to Wm. Ammerman, along with the amount of costs, not exceeding six or seven dollars. It was agreed that Ammerman should pay the amount of the note in suit with interest to G. W. Shinkle, who should credit the amount so paid on the note he held against Hutchison, and that the suit should be dismissed at Ammerman's costs. As Ammerman did not have the money on hand at the time of the settlement, it was agreed that he should execute a new note for Shinkle representing the amount of the note and interest in suit, and should secure it with a deed of trust to Shinkle on the land in controversy, which belonged to said Ammerman.

Accordingly, on the seventeenth of October, 1874, Wm. Ammerman executed his note in the sum of $241.55, secured by deed of trust' which was, by Hutchison, passed over to Shinkle, who accepted it and gave credit therefor on the note he held against Hutchison. Notwithstanding this settlement of the note in suit, Hutchison, without the knowledge of Wm. Ammerman, or his co-defendant, obtained a judgment by default against them on the thirteenth of October, 1875, which on the same day was made final in the full sum of the debt and for costs. This judgment on the margin thereof is certified as having been assigned by Hutchison to one A. Corse on the tenth of April, 1877. No execution was issued on the judgment at this time. On the eleventh of July, 1876, William Ammerman sold the land to the defendant, and with the purchase money paid off the note and mortgage he had given to Shinkle, and it is marked paid as of November 9, 1876. Long afterwards, on the thirteenth of March, 1878, execution was issued on the judgment of October 13, 1875, under which the land in controversy was levied upon and advertised for sale April 9, 1878. Ammerman did not know there was a judgment until he saw the land advertised for sale. On the day of sale and prior thereto Wm. Ammerman appeared in court and filed a motion to quash the execution and stay all proceedings under it, on the ground that the debt and judgment had been satisfied. This motion was supported by an affidavit setting out the satisfaction and payment of the note, as hereinbefore stated. It was resisted by Mr. Parker, attorney of the present plaintiff, and by Mr. Corse, apparent assignee of the judgment. During the pendency of this motion the sale took place and one A. M. Murphy became purchaser of the land at the price and sum of seventy-three dollars. On the nineteenth of April, 1878, he made conveyance of it to W. H. Murphy, the present plaintiff, alleging as a reason that he had been told that he had bought a law suit, and he did not feel able to defend it. The land was worth seven or eight hundred dollars. The defendant was in possession of it by virtue of his purchase from Wm. Ammerman. The court rendered judgment in favor of plaintiff, from which the defendant has appealed.

Unquestionably the judgment, by virtue of which the land was seized and sold, was procured by Mr. Hutchison against equity and good conscience. The note upon which default and judgment in the full amount was entered had been compromised by acceptance of the other note of Ammerman secured by deed of trust. Hutchison had accepted and turned over said note and deed of trust to his creditor, Shinkle, and had received credit on his own obligation to the full amount of the paper so received and turned over. It was an act of extreme injustice in him to insist on an enforcement of the note after it had thus been settled and paid by the defendant. And the defendant had no reason to expect such a movement. Bresnehan v. Price, 57 Mo. 422. It is urged...