Parker v. Waugh

• Decision Date: 31 January 1864
• Citation: 34 Mo. 340
• Parties: GABRIEL PARKER et als., Plaintiffs in Error, v. J. H. WAUGH, Sheriff, et als., Defendants in Error.
• Court: Missouri Supreme Court

34 Mo. 340

GABRIEL PARKER et als., Plaintiffs in Error,

v.J. H. WAUGH, Sheriff, et als., Defendants in Error.

Supreme Court of Missouri.

January Term, 1864.

Error to Boone Circuit Court.

Prewitt, Gordon, Shields, and Samuel, for plaintiffs in error.

I. The written order of Kirkbride to the sheriff, directing him to deliver the property to the defendant in execution, was sufficient to destroy the lien of his execution, and no orders or directions of the said Kirkbride could afterwards affect the rights of plaintiffs in error, or divest them of the lien which attached under and by virtue of their execution on said property. (Wise v. Darby, 9 Mo. 130.)

II. That the redelivery of the slaves levied on to Laforce after the levy, and permitting them to remain in his possession without a delivery bond, under the written order of Kirkbride, was a fraud sufficient to destroy any prior lien or preference Kirkbride's execution had over that of the plaintiff. (Storm & Beekman v. Woods, 11 John. 110.) If a creditor cause the goods of his debtor to be seized by a fieri facias and suffer them afterwards to remain in the possession of the debtor, the execution will be deemed fraudulent and void against a subsequent execution. (Whipple v. Foot, 2 Johns. 422; Farrington & Smith v. Sinclair, 15 Johns. 428; 2 Tenn. 287, 596; 1 Wils. 44; 1 Camp. N. P. 333; Doty v. Turner, 8 John. 20.)

Jo. Davis, for defendants in error.

I. The record shows that the case was tried by the court; that no evidence was objected to by either party in the trial; that no instructions were asked or given by the court, neither was there a motion made for a new trial. There is no case here for the revision of this court. (Fugate & Kelly v. Muir, 9 Mo. 351, and cases there cited.)

II. There was no cause of complaint in the finding of the court below. The waiver of a prior lien created by execution, when the plaintiff agrees to a delay or postponement of proceedings under his execution, implies a fraud in law upon the junior execution creditor; but that implication may be removed and explained away by other testimony, and was in this case. The sheriff never having complied with the terms and conditions of the proposition to postpone the sale under the prior executions, the court might well find that there was, in fact, no agreement to postpone or suspend the sale, and that the sheriff acted upon his own responsibility. (9 Mo. 131, and cases therein referred to.)

BATES, Judge, delivered the opinion of the court.

On the 15th November, 1862, Waugh, the sheriff of Boone county, had in his hands five executions issued by the clerk of the Boone Circuit Court against Laforce, which, on that day, he levied upon twenty-one slaves of Laforce. Two of these executions--one in favor of Prewitt, and the other in favor of Bradford--were satisfied by a sale of real estate, and will not be further considered in this case. The others were, one in favor of Kirkbride upon a judgment for $5343.17; one in favor of Hardin for $557.30; and the other in favor of Orear for $249.19. On the same day Kirkbride gave the sheriff the following letter: “I hereby authorize James H. Waugh, sheriff of Boone county, Missouri, to let the personal property levied upon under an execution issued by the clerk of the Boone Circuit Court, in my favor, against Felix G. Laforce, remain in his hands, at my wish, without taking a delivery bond for the same, so far as my execution goes, which levy was made by said Waugh on the 15th day of November, 1862. Witness my hand, this 15th day of November, 1862.--J. Kirkbride.” On the 28th of November, 1862, there were delivered to the same sheriff...