Nesbit v. Neill

• Decision Date: 30 April 1878
• Citation: 67 Mo. 275
• Parties: NESBIT v. NEILL, Appellant.
• Court: Missouri Supreme Court

67 Mo. 275

NESBIT

v.NEILL, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Callaway Circuit Court.--HON. G. H. BURCKHARTT, Judge.

John A. Hockaday for appellant.

An execution sale under a judgment that has been paid off carries no title to a purchaser with notice. Where land is sold under an execution, which has been satisfied by the sale of other property, the deed to such land is inoperative and void. Durette v. Briggs, 47 Mo. 356; Weston v. Clark, 37 Mo. 568; Reed v. Austin, 9 Mo. 713. Whilst the judgment in the present case had not been actually paid off, yet funds were in the hands of respondent, the owner of the judgment, sufficient to satisfy it, and for that purpose, which was equivalent to payment. Whether appellant signed the compromise agreement or not, it enured to his benefit, and respondent had no right under the agreement to have Neill's land sold until Hook's estate proved insufficient for the payment of the remainder of the judgment.

J. W. Boulware for respondent.

The judgment, execution and deed to respondent being regular and valid, and the judgment being unsatisfied and in full force, respondent's title was complete. Nesbit's relation to the judgment did not affect his rights. Butterfield v. Walsh, 21 Iowa 99; Evans v. McGlasson, 18 Iowa 150.

NAPTON, J.

There is no doubt of the regularity and validity of the plaintiff's title at law, to the land in controversy. The question is whether a court of equity will allow a title, acquired under the circumstances proved in this case, to be available to the plaintiff in ejectment. There is some contrariety in the testimony in regard to the question of fact, whether the defendant, Neill, signed the compromise agreement between the securities of Hook and the plaintiffs in the judgment against them for $44,000. We think the fact entirely immaterial. It is quite certain that he did not sign the paper ultimately accepted by Mr. Glover, the attorney in fact, as well as the attorney at law of the plaintiffs in the Payne judgment, though it is quite probable, indeed I might say certain, that he did sign a paper deposited in the Fulton Bank, purporting to be such agreement, but which, being unsatisfactory, was returned to Mr. Nesbit, to whom this judgment was proposed to be transferred for certain purposes specified in the compromise. Whether the defendant signed the compromise or not, it is certain that as one of the securities and defendants in said judgment, he was assessed his proportionate share and paid it. It was Mr. Nesbit's business to collect the $30,000 from the securities, and he was also selected to regulate the amount each security should pay by his pecuniary ability to stand the loss, and the sum he assessed against the defendant, Neill, was paid by Neill, and the whole $30,000 was collected and remitted to Mr. Glover, in St. Louis. It was of no importance whether he signed the compromise or not--he accepted it, ratified it, paid his share of liability under it and would therefore seem, upon ordinary equitable principles, to have been as much entitled to the benefits of it as though he had signed it. The substance of this compromise was that the securities of Hook were to pay $30,000 of the $44,000, due on the Payne judgment, and the judgment was to be transferred to Nesbit for the purpose of securing an additional $10,000 and costs; but, upon the distinct understanding and agreement that if this $10,000 could be made out of the estate of Hook, then in bankruptcy, the securities were to be no...