Paddock v. Lance

• Decision Date: 19 December 1887
• Citation: 6 S.W. 241,94 Mo. 283
• Parties: PADDOCK et al. v. LANCE et al.
• Court: Missouri Supreme Court

6 S.W. 241

94 Mo. 283

PADDOCK et al. v. LANCE et al.

Supreme Court of Missouri.

December 19, 1887.

1. EXECUTION — EXEMPTION — ENFORCEMENT OF RIGHT — PLEADING.

A judgment creditor, claiming title to a tract of land under a sheriff's deed on execution issued under the judgment, brought suit to have a trustee's deed of the property, to the wife of the judgment debtor, and a subsequent trust deed executed by her, set aside for fraud. The debtor answered by general denial, and the wife set up that, at the date of the trustee's sale at which she bought, her husband was, for want of personal property, entitled to hold his equity of redemption in the land exempt from sale under execution. There was no issue made of the right to such exemption at the date of the execution sale, and no allegation that the officer failed to

notify the debtor of his right of exemption and election as required by Rev. St. Mo. § 2347. Held, the judgment of the court decreeing plaintiffs' title invalid, because of the failure of the officer to give the debtor notice of his right of exemption and election, was unauthorized by the pleadings.

Appeal from circuit court, Cape Girardeau county; ROBERT S. WILSON, Judge.

Gaius Paddock and others brought suit against the defendants, Henry D. Lance and others, to set aside a trustee's deed to the wife of defendant Lance, and a subsequent trust deed executed by her. The court set aside the two conveyances, and also decreed that the plaintiffs' title acquired at an execution sale was invalid. Plaintiffs appeal.

Oliver & Limbaugh, for appellants. Cramer & Wilson, for appellees.

BLACK, J.

The plaintiffs recovered a judgment against the defendant Henry D. Lance in January, 1884, on a note dated in 1880. They purchased the one acre of land here in question at a sale made under an execution issued on the judgment, the amount bid being less than $100. The sale was made in May, 1884. Lance acquired the property in May, 1882, and then gave a deed of trust on the same to secure a part of the purchase price. Some $75 of this debt being unpaid, the trustee sold the property on the twenty-fourth November, 1883, and Mrs. Lance, the wife of Henry D. Lance, became the purchaser. Thereafter she and her husband gave a deed of trust on the same property to secure a note of $300 to the defendant Sievers. The acre is valued at from three to six hundred dollars. The plaintiffs by their petition seek to set aside the trustee's deed, and the subsequent deed...