Parks v. People's Bank of De Soto

• Court: Missouri Court of Appeals
• Writing for the Court: ROMBAUER, P. J.
• Citation: Parks v. People's Bank of De Soto, 31 Mo.App. 12 (Mo. App. 1888)
• Decision Date: 08 May 1888
• Parties: CHARLES H. PARKS et al., Respondents, v. THE PEOPLE'S BANK OF DE SOTO et al., Appellants.

31 Mo.App. 12

CHARLES H. PARKS et al., Respondents, v. THE PEOPLE'S BANK OF DE SOTO et al., Appellants.

Court of Appeals of Missouri, St. Louis.

May 8, 1888

Appeal from the Jefferson Circuit Court, Hon. JOHN L. THOMAS, Judge.

Affirmed, and certified to the Supreme Court.

JOS. P TATUM and THOMAS & HORINE, for the appellants: Sales in invitum are sometimes enjoined on the ground of casting a cloud on title, but that reason is not set up in this case, nor is it given in the finding of the court. Even were it claimed, it would not apply here, as the law in this state clearly and unequivocally is, that sheriffs' sales under execution, of the interest of the execution debtor will not be enjoined at the suit of a third person, on the ground that it is his land that the sheriff is about to sell and not the defendant's in the execution, nor for the reason that a cloud will be thereby cast upon the title. Witthaus v. Bank, 18 Mo.App. 181; Kuhn v McNeil, 47 Mo. 389; Drake v. Jones, 27 Mo. 428. The evidence does not show an agreement to convey; nor do the receipts set out such agreement, nor are they effective as a purchase and sale. The receipts moreover call, if they do call, for half of an undivided fifth. Which half? Which fifth? Where located? Plaintiffs, therefore, had no equity for specific performance. The case is within the statute of frauds. Whaley v. Hinchman, 22 Mo.App. 483; Scarrit v. Church, 7 Mo.App. 174; Schroeder v. Taaffe, 11 Mo.App. 267; King v. Wood, 7 Mo. 389; Ivory v. Murphy, 36 Mo. 541; Springer v. Kleinsorge, 83 Mo. 153. The plaintiffs did nothing under their alleged purchase. There must be some part performance--some substantial change in the situation of the parties. Browne Stat. Frauds, secs. 448, 448 a, 452; Williams v. Morris, 95 U.S. 444; Townsend v. Hawkins, 45 Mo. 286. The Supreme Court of Missouri still adhere to the doctrine that a third party cannot interfere with a sale of another's interest or right. Wilcox v. Walker, 13 West. Rep. 263.

JOSEPH J. WILLIAMS, for the respondents: When the judgment was rendered against William M. Parks, the legal title resided in him, plaintiffs being the equitable owners. A sale under an execution issued on the judgment, at any time during the continuance of the lien, and sheriff's deed would pass the legal title to the execution purchaser, which would take effect, by relation, as of the date of the judgment lien, and defeat the legal title acquired by plaintiffs by their deeds of date January 8, 1887. Injunction was the appropriate and only remedy. 1 High on Inj. [2 Ed.] sec. 369; Orr v. Orr, 3 J. J. Marsh. 269. The contract is sufficiently definite. Its sufficiency is not questioned by the answer. Browne on Statute of Frauds [4 Ed.] sec. 385.

OPINION

ROMBAUER P. J.

This is a bill in equity seeking to restrain the defendant bank, a judgment creditor of Wm. M. Parks, from causing its judgment and execution to be enforced against certain lands formerly the property of said Parks and now the property of the plaintiffs.

The plaintiffs state in their petition that in March, 1885, Wm. M. Parks sold to them for a valuable consideration his interest in certain lands inherited from his father, and at that time executed and delivered to them memoranda of the sale, but made no formal conveyances of the land until January, 1887; that the defendant bank, in September, 1886, recovered a judgment against Parks and caused an execution to be issued thereon which the defendant sheriff under its direction levied upon Parks' interest in said lands, although he had no interest therein, threatening to sell the same and thereby subject plaintiffs to a multiplicity of suits. The plaintiffs pray that the bank be restrained from selling the lands under said execution or any execution which might thereafter be issued on such judgment.

The defendants appeared and took issue by answer. They admit that the lands levied on are the lands described in plaintiffs' petition, and were inherited by Wm. M. Parks from his father. They claim that the lien of the bank's judgment attached to said lands prior to the acquisition by plaintiffs of any legal interest therein, and aver that at and before the rendition of said judgment Wm. M. Parks was the legal owner thereof, and if the plaintiffs had any equitable rights or claims against it such claim was unknown to the officers of the bank prior to the filing of the petition herein. The answer states that the sale averred in the petition from Parks to plaintiffs was a mere pretense, that the memoranda were executed after the judgment was rendered, and that no money or other valuable consideration was ever paid to Parks by the plaintiffs for said lands. The answer sets up some facts by way of estoppel which it is unnecessary to notice, since they were denied by reply, and no evidence was offered in their support.

The court granted a restraining order upon the filing of the petition and upon the final hearing made the injunction perpetual as prayed for, awarding against plaintiffs all the costs which were caused by the levy of the execution and the advertisement of the lands for sale. From this decree the defendants appeal, and assign for error that there is no equity in the bill and that the evidence does not support the decree.

It has been decided at an early day in this state " that under our system of laws and the practice in reference to execution sales it would be unwise and create great confusion in the administration of justice to permit sales under execution to be enjoined on the ground that they will pass no title, and might cast a cloud on the title of the true owner." Drake v. Jones, 27 Mo. 433. The ground upon which the decision was put was that a proceeding by injunction ought not to be substituted for an action of ejectment, when in fact no real controversy might arise after the sale. This ruling was followed in Kuhn v. McNeil, 47 Mo. 389, and was approvingly cited in McPike v. Pen, 51 Mo. 63. It was extended even to sales under deeds of trust where the title was matter of record, on the ground that the plaintiff has a complete and adequate remedy at law against any claim that might be asserted by the purchaser in the courts by virtue of any title he may acquire at such sale and which he must take with notice of plaintiff's record title.

On the other hand it has been held that the sheriff will be enjoined from the sale of land for nonpayment of taxes although the assessment be illegal, when a cloud will thereby be thrown upon the title. Lockwood v. St. Louis, 24 Mo. 20; Fowler v. St. Joseph, 37 Mo. 228; Leslie v. St. Louis, 47 Mo. 474; McPike v. Pen, 51 Mo. 63. And the same rule was applied to sales under deeds of trust in Vogel v. Montgomery, 54 Mo. 577, and Matthews v. Skinker, 62 Mo. 329.

It is difficult to reconcile the cases in this state on the question under what circumstances a sale will be restrained in equity on the ground that it will cast a cloud upon the plaintiff's title, but it may be conceded that where the plaintiff has a full and adequate remedy at law in defending against an action of ejectment, the courts will not enjoin a sale under execution on the ground that the defendant in the execution has no title in the land vendible on execution. The cases of Drake v. Jones, and Kuhn v. McNiel, supra, go no further than this; and we may concede that, under these decisions, if the mere effect of a sale in this cause would have been to cast a cloud upon the legal title of plaintiffs, their bill should have been dismissed for want of equity.

But the case of plaintiffs is different. At the date of the recovery of this judgment the legal title to the land was in the execution debtor, and the lien of that judgment at once attached to such title. If the legal title, at that date, had passed out of the debtor his grantees, even though their deed were unrecorded, could, by recording their deed prior to the execution sale, have acquired a valid legal title against the purchaser at the execution sale. Davis v. Owenby, 14 Mo. 170; Valentine v. Havener, 20 Mo. 133; Potter v. McDowell, 43 Mo. 93; Reed v. Ownby, 44 Mo. 204; Black v. Long, 60 Mo. 181. But such would not be the effect of an acquisition of the legal title by them subsequent to the recovery of the judgment.

While under our practice a defendant in ejectment may defend upon the strength of an equitable title (Valle v. Fleming, 29 Mo. 152; Shroyer v. Nickell, 55 Mo. 264; Jones v. Manly, 58 Mo. 559; Harrington v. Fortner, 58 Mo. 468; Carter v. Prior, 78 Mo. 222), it is, to say the least, doubtful how far he could successfully defend upon the strength of a mere equitable right against a purchaser at the execution sale buying without notice.

These considerations lead us to the conclusion that the plaintiffs by their petition show themselves entitled to equitable relief.

But even if we were mistaken in this view, and even if the petition, under the ruling in Kuhn v. McNiel, supra, were demurrable, we would not feel warranted to reverse the judgment on that ground alone. No demurrer was interposed. The defendant went to trial upon the facts, and the plaintiffs having substantiated the facts by evidence, the defendant now claims that a trial upon the facts was erroneous and unwarranted. The Supreme Court has repeatedly decided that when a correct result is reached, although the proceedings were had upon an erroneous theory and irregular, the judgment should not be reversed. Conley v. Doyle, 50 Mo. 234, 235; Mississippi River Bridge Company v. Ring, 58 Mo. 491, 495.

Assuming that the plaintiffs might defend successfully in an action of ejectment if the sale were not enjoined, their defence would be purely equitable. Their defence would have to be tried before the same...