People's Bank of Glasgow v. Yager

• Decision Date: 17 February 1932
• Docket Number: 30042
• Parties: Peoples Bank of Glasgow v. Albert Lee Yager, Aubrey S. Kallmeyer and Tri-County Trust Company; Albert Lee Yager, Appellant
• Court: Missouri Supreme Court

46 S.W.2d 585

329 Mo. 767

Peoples Bank of Glasgow v. Albert Lee Yager, Aubrey S. Kallmeyer and Tri-County Trust Company; Albert Lee Yager, Appellant

No. 30042

Supreme Court of Missouri

February 17, 1932

Appeal from Howard Circuit Court; Hon. Allen W. Walker Judge.

Affirmed.

Percival Birch and Gilbert Lamb for appellant.

(1) Since there can be but one final judgment in a cause, the record shows there was never a final judgment as to Josephine Wells in that action, hence the execution sale was a nullity. R. S. 1919, sec. 1528; Cramer v. Barmon, 193 Mo 327; McQuitty v. Steckdaub, 190 S.W. 590; Dickson v. Transit Co., 197 Mo.App. 646. (2) The reversal of the judgment against Ann Yager and Josephine Wells by the Kansas City Court of Appeals, on the appeal of Ann Yager alone, reversed the judgment of the lower court as to Josephine Wells and therefore the execution sale was a nullity. 4 C. J. 1204, sec. 3249; Chicago Herald Co. v Bryon, 195 Mo. 596; Wollman v. Loewen, 108 Mo.App. 581; Ruth v. McPherson, 150 Mo.App. 694; Campbell v. Milling Co., 127 Mo.App. 287; McKee v. Rudd, 222 Mo. 373; Hall v. Calhoun, 82 N.W. 229. (3) Where an execution sale is had under a judgment which is thereafter reversed a deed to the plaintiff in the reversed judgment is set aside by the reversal. Gott v. Powell, 41 Mo. 420; Cowdery v. Bank, 73 P. 196.

E. W. Henry for respondent.

(1) A judgment rendered by a court having jurisdiction of the parties and the subject-matter, unless reversed or annuled in some proper proceeding, is not open to contradiction or impeachment, in respect to its validity, verity, of binding effect, by parties or privies, in any collateral action or proceeding, except for fraud in its procurement. 34 C. J. 511; Virgin v. Kennedy, 32 S.W.2d 95; First Nat. Bank & Tr. Co. v. Bowman, 15 S.W.2d 851. (2) The case of Peoples Bank v. Ann Yager and Josephine Wells was a suit on a promissory note, a joint and several obligation, and defendants being so liable, they could be sued jointly, or both separately. If judgment was obtained against both in a suit against both, or if judgment was obtained against each in separate suits, satisfaction could be enforced against either as plaintiff might elect, being entitled, however, to but one satisfaction. Cases in which all defendants were liable or none were so, are inapplicable. Gebber v. Kansas City, 277 S.W. 562; State v. Blakemore, 205 S.W. 626. (3) The interest of the parties may be rightfully separated when the errors do not effect them jointly and when the rights of one party do not depend upon those of another. State v. Haid, 29 S.W.2d 714; Shuff v. Kansas City, 282 S.W. 128; Gebber v. Kansas City, 277 S.W. 562. Since Josephine Wells withdrew her answer a judgment entered against her by default was final and disposes of the case as to her. Ann Yager alone appealed. The reversal and remanding the case as to Ann Yager did not disturb the judgment against Josephine Wells. And Sec. 1528, R. S. 1919, as to one final judgment, was not violated. Shuff v. Kansas City, 282 S.W. 128.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

This suit originated in the Circuit Court of Howard County, Missouri. Plaintiff, respondent here, filed a petition seeking to partition certain real estate described as follows:

"Parts of Sections one (1) and two (2) in township fifty (50), range eighteen (18) west, in Howard County, State of Missouri bounded as follows: Beginning at a point were the north line of the southwest fractional quarter of section one (1), township 50, R. 18 west intersects the East bank of the Missouri River, thence east along said quarter section line to the middle of said section one (1), thence south along the quarter section line to the point where the east line of said southwest quarter section intersects the north line of the land formerly owned by Kirk Earickson said land being in section one (1) thence west to the section line between sections one (1) and two (2), thence south along the section line to the southeast corner of said section two (2), thence west along the section line to the point where said section line intersects the east bank of the Missouri River, thence in a northerly direction along the east bank of the Missouri River and with the meanders thereof, to the place of beginning, together with the accretions thereto."

Plaintiff alleged that it was the owner of an undivided one-fifth interest, and defendant Albert Lee Yager, an undivided four-fifths interest in the lands above described; that defendant Tri-County Trust Company was the owner and holder of a note and deed of trust, dated June 16, 1928, upon the interest of defendant Albert Lee Yager, for the sum of eight hundred dollars; that defendant Aubrey S. Kallmeyer was the trustee in the deed of trust.

Defendants filed a joint answer admitting the allegations of plaintiff's petition except that plaintiff had any title, whatever, to the lands described. Defendants affirmatively pleaded Albert Lee Yager to be the sole owner in fee of the lands, subject only to the deed of trust in favor of defendant Tri-County Trust Company. Defendants prayed the court to try and determine the title to the lands, and to declare defendant Albert Lee Yager the owner in fee, subject to the deed of trust mentioned.

The trial court, after hearing the case, entered a judgment for plaintiff, as prayed for in its petition, decreeing that plaintiff was the owner of an undivided one-fifth interest in the land, free and clear of the alleged deed of trust. From this judgment, defendant Albert Lee Yager appealed.

The undisputed facts in the case are as follows: William B. Yager, who died intestate in the year 1914, is the common source of title. At the time of his death William B. Yager owned the land in controversy and left as his heirs the widow, Ann Yager and five children: defendant Albert Lee Yager, Elma Andrews, Eulah Andrews, Lester Yager and Josephine Wells. The widow, Ann Yager, died, prior to the filing of the partition suit.

Appellant Albert Lee Yager claims title to an undivided four-fifths interest in the lands, by virtue of a warranty deed, dated April 28, 1928, duly executed by his co-heirs; and a one-fifth interest, as heir of his father, William B. Yager. Appellant's title is not disputed except the one-fifth interest of Josephine Wells, which is the controversy of this litigation.

Plaintiff, the Peoples Bank of Glasgow, claims title to an undivided one-fifth interest in the lands, by virtue of a sheriff's deed, under an execution sale dated the 21st day of September, 1926. On May 12, 1926, the plaintiff obtained a judgment against Ann Yager and Josephine Wells in the sum of three thousand and sixty-nine dollars and ten cents ($ 3,069.10), based on a promissory note. Ann Yager and Josephine Wells filed separate answers to the petition of plaintiff, in the suit on the promissory note. Josephine Wells withdrew her separate answer, whereupon a default judgment was entered against her and the case was tried on the issue raised by the answer of Ann Yager. A jury returned a verdict against Ann Yager, and thereafter the court entered the following judgment:

"It is therefore considered and adjudged by the court that the plaintiff recover of the defendants Ann Yager and Josephine Wells three thousand, sixty-nine and 10-100 dollars with interest from the date of this judgment at the rate of seven per cent per annum, till paid, the interest to compound annually at the same rate of interest, as provided in the promissory note sued on, together with the cost of this suit, and have execution therefor."

Ann Yager duly appealed, from this judgment entered against her, to the Kansas City Court of Appeals; and that court on December 6, 1926, reversed the judgment and remanded the case for a new trial. [See 288 S.W. 954.]

During the time the case was pending on appeal, by Ann Yager, the Peoples Bank of Glasgow had an execution issued on the judgment, and the sheriff levied on and sold all the title and interest of Josephine Wells in the lands here in controversy. The Peoples Bank of Glasgow, the respondent here, became the purchaser at this sale and, as above mentioned, received a sheriff's deed, dated September 21, 1926. The deed of trust, held by the Tri-County Trust Company, was dated June 16, 1928. By this deed of trust appellant and his wife conveyed the above described land to Aubrey S. Kallmeyer, as trustee, to secure the payment of a note for eight hundred dollars in favor of the Tri-County Trust Company.

Appellant's position in this case can be best stated by quoting the assignments of error. They are:

"1. On the undisputed testimony in this case, the trial court erred in not finding and adjudging that there was no final judgment in the case of the Peoples Bank of Glasgow v. Ann Yager and Josephine Wells, pending the appeal, under which a sale could be had that would pass title to the plaintiff.

"2. Upon the undisputed evidence in this case, the trial court erred in not holding that the reversal of the judgment by the Kansas City Court of Appeals, in the Peoples Bank of Glasgow v. Ann Yager and Josephine Wells reversed the judgment of the trial court as to Josephine Wells."

Appellant cites Section 1528, Revised Statutes 1919, now Section 1077, Revised Statutes 1929; Cramer v. Barmon, 193 Mo 327; McQuitty v. Steckdaub, 190 S.W. 590; Dixon v. Transit Company, 197 Mo.App. 646, as authority that the record in this case shows there was no final judgment, as to Josephine Wells, and therefore, the execution sale was a nullity. Appellant cites 4 Corpus Juris, page 1204, Section 3249; McKee v. Rudd, 222 Mo. l. c. 373; Chicago Herald Co. v. Bryan, 195 Mo. l. c. 596, and similar cases, as...