Payne v. The Daviess County Savings Association

• Decision Date: 04 November 1907
• Citation: 105 S.W. 15,126 Mo.App. 593
• Parties: GEORGE H. PAYNE, Respondent, v. THE DAVIESS COUNTY SAVINGS ASSOCIATION and R. D. McCRAY, Sheriff, etc., Appellants
• Court: Kansas Court of Appeals

105 S.W. 15

126 Mo.App. 593

GEORGE H. PAYNE, Respondent, v. THE DAVIESS COUNTY SAVINGS ASSOCIATION and R. D. McCRAY, Sheriff, etc., Appellants

Court of Appeals of Missouri, Kansas City

November 4, 1907

Appeal from Daviess Circuit Court.--Hon. Joshua W. Alexander, Judge.

AFFIRMED.

Judgment affirmed.

Hicklin Leopard & Hicklin for appellant.

Injunction will not lie to restrain the sale of land where plaintiff is in possession of the land and where his legal record title is superior to any title that can be acquired by a purchaser at the sale, and where plaintiff has a complete and adequate remedy at law against any claims that may be asserted by such purchaser. Wilcox v. Walker, 94 Mo. 89; Haeussler v. Thomas, 4 Mo.App. 463; Drake v Jones, 27 Mo. 429; Kuhn v. McNeil, 47 Mo. 389; Witthaus v. Bank, 18 Mo.App. 181; Clark v Insurance Co., 52 Mo. 273; Russell v. Lumber Co., 112 Mo. 41.

Boyd Dudley for respondent.

(1) Under the statute, as amended at the revising session of 1899, injunction will lie in any case "where a cloud would be put on the title of real estate being sold under execution against a person, partnership, or corporation having no interests in such real estate subject to execution at the time of sale." Neely v. Bank of Independence, 89 S.W. 907. (2) We have been unable to find any case where injunction has been brought to restrain sale under execution where this section has been passed upon since it was amended in 1899, and the amendment seems to have been entirely overlooked, and the point here raised on this amendment, so far as we have been able to find, appears to be one of first intention, excepting Neely v. Bank, 89 S.W. 907, which sustains our view.

OPINION

JOHNSON, J.

--Injunction to restrain defendants from selling and conveying certain lands under execution issued on a judgment recovered by defendant Bank against the mother of plaintiff.

A statement of facts sufficient for present purposes appears in the following portion of the final judgment: "That the defendant, The Daviess County Savings Association, is a corporation duly organized and incorporated according to law and the defendant, R. D. McCray, is the duly elected and qualified sheriff of Daviess county, Missouri; that the plaintiff is the owner and in possession of the lands described in his petition, to-wit: All the west half of the southwest quarter, north of Grand river, of section nine (9), except the south twenty-six acres, also north of Grand river of the south-west quarter of section eight (8), all in township fifty-nine (59) and range twenty-seven (27) in Daviess county, Missouri.

That prior to the year 1866 said land was owned by plaintiff's father, Francis W. Payne; that during said year 1866 said Francis W. Payne died owning the same, the head of a family, consisting of his wife, Elizabeth Payne, and two sons, Jacob Payne and George H. Payne, this plaintiff; that at the time of his death he lived on said land with his said family as a homestead and died thereon; that the land owned by said Francis W. Payne and upon which he died was less than 160 acres in extent and of less value than $ 1,500; that under the law then in force the widow became at his death the owner of said land in fee simple; that thereafter a pretended petition proceeding was had between the widow and heirs of said deceased whereby the land in suit was allotted to said Jacob and George H. Payne and other of said land of which said deceased died seized was set off to said widow as a dower; that said Jacob Payne conveyed to plaintiff his interest in said land and that plaintiff entered into possession thereof with the knowledge and consent of said widow and has had open, notorious and continuous and hostile possession thereof, with the knowledge of said widow for a period of twenty-five years and that his title thereto has ripened into a fee simple title by limitation; that said widow after the death of said Francis W. Payne married one ___ Robertson and is now Elizabeth Robertson; that on November 7, 1901, the defendant, The Daviess County Savings Association, recovered judgment before S. P. Cox, a justice of the peace within and for Union township, Daviess county, Missouri, against said Elizabeth Robertson for the sum of $ 169.74, debt contracted a long time prior thereto, that execution duly issued thereon and returned "no property found whereon to levy the same;" that transcript was filed in the office of the circuit clerk of said county of said judgment; that transcript execution duly issued out of said court thereon, directed to the sheriff of said county; that defendant sheriff levied the same upon land of plaintiff above described and seized the same thereunder as the lands of Elizabeth Robertson, and advertised said land for sale under said execution as the lands of said Elizabeth Robertson, on Friday, September 5, 1902; that after the creation of the debt above mentioned and before the rendition of said judgment thereon said Elizabeth Robertson conveyed said land by quit claim deed dated October 18, 1901, for a pretended consideration of ten dollars to the plaintiff; that this suit was brought to restrain the sale of said land under and by virtue of said execution on September 1, 1902, and that a temporary order restraining said sale issued out of this court on the 5th day of September, 1902.

The court further finds that a sale of said lands by defendants under said execution would cast a cloud upon the title of plaintiff to said land; that the sheriff's deed issued under said sale would constitute a cloud upon said title and would be a menace thereto and that the legal acumen would be required to determine whether the plaintiff or the purchaser of such sale would hold the paramount title to said land, and that by the making of such sale and execution of said sheriff's deed thereunder the plaintiff would suffer irreparable injury and that he has no adequate remedy at law."

On these findings, the court made perpetual the injunction restraining defendants from proceeding with the sale of the land under the judgment recovered by defendant association against Elizabeth Robertson. Defendants' motion for a new trial and in arrest of judgment were overruled and an appeal was granted them to the Supreme Court, but that tribunal certified the cause here on the ground that, as the amount involved in the controversy is less than $ 4,500 and title to real estate is not directly in question, the jurisdiction over the appeal is vested in this court. [Payne v. Savings Association, 198 Mo. 617, 96 S.W. 1016; State ex rel. v. Court of Appeals, 67 Mo. 199.]

Defendants rely for a reversal of the judgment on the proposition that "injunction...