Pierce v. Stinde

• Decision Date: 24 January 1883
• Parties: EDWARD V. PIERCE, Appellant, v. CONRAD R. STINDE ET AL., Respondents.
• Court: Missouri Court of Appeals

11 Mo.App. 364

EDWARD V. PIERCE, Appellant,

v.CONRAD R. STINDE ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jan. 24, 1883.

1. Where the term passes without an appeal having been taken there is then no suit pending, and no jurisdiction of the parties until a writ of error is sued out and notice thereof given.

2. After the lapse of the term without an appeal having been taken, a bona fide purchaser of the property in controversy, who buys without knowledge that a writ of error has been sued out, takes a title unaffected by any rights which the plaintiff in error may acquire under the writ of error.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Reversed and remanded.

S. N. HOLLIDAY, for the appellant: Pierce's knowledge of Stinde's suit, and of the facts involved therein that were adjudicated upon by the circuit court, as learned from Gottschalk's certificate after the final judgment, did not disqualify him from purchasing the land from defendants in that suit after the time for taking an appeal had elapsed.-- Harrington v. McCollum, 73 Ill. 476; Taylor v. Boyd, 3 Ohio, 337; Bank v. Bank, 6 Pet. 16; Lovett v. Church, 12 Barb. 67, 83; Gott v. Powell, 41 Mo. 416, 419. The orignal suit of Stinde v. Behrens and wife was not pending after the expiration of the June term, because a writ of error is a new suit.-- Ripley v. Moriss, 7 Ill. 381; Allen v. Mayor, 9 Ga. 286; Gregg v. Berthea, 6 Port. 9; McJilton v. Love, 13 Ill. 486, 494; Robinson v. Magarity, 28 Ill. 423, 426; Phelps v. Landon, 2 Day, 371; Hailman v. Buckmaster, 8 Ill. 498; Jenkins Pepoon, 2 Johns. Cas. 312. The writ of error in this case, although sued out September 29, 1877, was not pending so as to notify purchasers, until the defendants in error were brought into court by proper notice. A suit pending is not notice to a purchaser, so as to affect and bind his interest, until the writ is served, after petition filed.-- Baileyv. McGinniss, 57 Mo. 362, 371; Herrington v. Herrington, 27 Mo. 560, 562; Metcalf v. Smith, 40 Mo. 572; Samuels v. Shelton, 48 Mo. 444. Purchasers, after a decree in chancery, and after writ of error issued and bond given, but before notice served of the issuance of the writ, are not pendente lite purchasers.-- Taylor v. Boyd, 3 Ohio, 337; McCormick v. McLure, 6 Blackf. 466.

FINKELNBURG & RASSIUER, for the respondents: One who purchases property pendente lite is bound by the judgment rendered against the person from whom he derives title.-- O'Reilly v. Nicholson, 45 Mo. 160; Real Estate Instn. v. Calonius, 63 Mo. 290. Parties having actual notice cannot invoke the benefit of statutory notice.-- Sampson v. Oleyer, 22 Cal. 200. Actual notice need not be direct or formal. Any facts or circumstances which would put a prudent man on inquiry, are sufficient.-- Bartlett v. Glasscock, 4 Mo. 62; Stephenson v. Smith, 7 Mo. App. 610-619; Mense v. McLean, 13 Mo. 29; Major v. Buckley, 51 Mo. 227; Fellows v. Wise, 55 Mo. 413. Notice is actual, when the purchaser knows of the existence of the adverse claim, or is conscious of having the means of knowledge, although he may not use them.-- Speck v. Riggin, 40 Mo. 405; Vaughan v. Tracy, 22 Mo. 415; Rhodes v. Outcalt, 48 Mo. 367; Muldrow v. Robinson, 58 Mo. 331; Eck v. Hatcher, 58 Mo. 235; Comet v. Bertelsman, 61 Mo. 118.

THOMPSON, J., delivered the opinion of the court.

This is a petition in ejectment. It appeared at the trial that, on April 14, 1875, the defendant C. R. Stinde recovered a judgment against one Rudolph Behrens, for $1,533.67, in the St. Louis Circuit Court; that execution issuing from this judgment was levied upon the property here in controversy; and that it was sold thereunder to Stinde, who received a sheriff's deed therefor. At this time the legal title to the property was in Wilhelmine Behrens, wife of Rudolph Behrens. Thereafter Stinde brought an action against Mrs. Behrens and her husband, in the nature of a creditor's bill, alleging that title to the property had been vested in Mrs. Behrens by her husband by a fraudulent conveyance, and praying for a decree declaring the title in the plaintiff Stinde, and for a writ of possession. On May 22, 1877, the defendants, Behrens and wife, had judgment against Stinde in the circuit court. A motion for a new trial was filed within the proper limit of time; a bill of exceptions was signed during the term, but it would seem, owing to the circuit court adjourning on the last day of the term--September 29, 1877--at an earlier hour than was expected, Stinde was prevented from taking an appeal. But his counsel, on the same day, applied for a writ of error in the office of the clerk of the St. Louis Court of Appeals, and the writ issued on the same day. On October 6, 1877, the clerk of the circuit court certified a transcript of the record to the court of appeals. On February 16, 1878, this transcript was filed in the office of the clerk of the court of appeals. In the meantime, Behrens and wife having removed from the State, it became impossible to serve them with notice of the writ of error; and hence, on April 2, 1878, leave was given to Stinde by the court of appeals, to serve them with notice by posting the same in the office of the clerk of the circuit court, which was done. On December 10, 1878, the judgment of the circuit court was reversed by the court of appeals, and the cause remanded to the circuit court. On January 13, 1879, the circuit court, in pursuance of the mandate of the court of appeals, rendered judgment in favor of Stinde, and awarded him a writ of possession, under which he was put in possession of the premises in dispute.

It is important that this chain of dates should be kept in mind, for it brings us to the more material facts of the case. It appears that from the day of the adjournment of the term of the circuit court at which the judgment had been rendered in faver of Behrens and wife in Stinde's suit against them, there was, until April 2, 1878, an interval during which, if the views which we shall hereafter express are correct, Behrens and wife were out of court, and there was no suit pending against them in respect of the land in question. Before the judgment of the circuit court had been rendered, Mrs. Behrens had offered to sell the land in controversy to Pierce, the plaintiff in this action. But he, having heard something about a suit affecting the land, declined to purchase until they could bring him a certificate of Mr. Gottschalk, their counsel in the case, to the effect that the litigation had finally ended in their favor. After the judgment of the circuit court had thus been rendered and the term had lapsed without an appeal being taken, Mr. Gottschalk gave such a certificate in writing--which, it will be seen, was a succinct history of the litigation--in the following language: “Conrad R. Stinde recovered a judgment against Rudolph Behrens in St. Louis Circuit Court, April 14, 1875, for $1,533.67; had it levied upon lots 60, 61, 62, 63, block 71, and at the sale bought the interest of Rudolph Behrens in said property. He then brought suit against Rudolph and Wilhelmine, his wife, in St Louis Circuit Court, being No. 31,726, October term, 1875, praying that the title of Wilhelmine be vested in him. This suit was finally decided at June term, 1877, confirming the report of the referee, which was to the effect that said Rudolph had no interest in said property, but that the same belonged to Wilhelmine, his wife, and that the plaintiff Stinde acquired nothing by his purchase; that said Stinde's judgment was not a lien on this property, and that said property could not be reached for Rudolph Behren's debt. This suit has not been appealed from, and, the term having expired, it cannot be appealed. As a conclusion, we will say that Wilhelmine Behrens, her husband joining her, can convey a good title to said property, and that said Stinde's judgment is no encumbrance thereon.

“GOTTSCHALK,

ST. LOUIS, Oct. 2, 1877.

Attorneys at Law.”

Upon the faith of this certificate, having no knowledge that steps had been taken to prosecute a writ of error in the St. Louis Court of Appeals to reverse the judgment, and believing that the litigation had finally ended in favor of Behrens and wife, the plaintiff Pierce, in good faith, on October 10, 1877, purchased the land of Mrs. Behrens, and paid a full and fair value therefor, and on the following day received a warranty deed for the same. Behrens and wife immediately delivered possession to him, and he continued in possession, collecting the rents, until March 5, 1879, when he was ousted by the writ of possession from the circuit court, as already stated.

The grounds on which the defence in this case rests are twofold: 1. That at the time of the purchase the plaintiff had actual notice of the claim of the defendant, and hence purchased subject to his equity. 2. That at the time of the purchase, the plaintiff's claim was being prosecuted in a judicial proceeding, and that there was hence a lis pendens.

If the first proposition is correct, it may be conceded that the plaintiff cannot recover. One who purchases land with knowledge of the fact that the equitable title is claimed by another, purchases subject to the equities of that other, and subject to the liability of having his legal title divested out of him and vested in the owner of such equitable title. This is an elementary proposition, and is not controverted. Rhodes v. Outcalt, 48 Mo. 367; Barksdale v. Brooks, 70 Mo. 197. If the defendant had such a title at the time when the plaintiff purchased the land, and the plaintiff had actual notice of it, then, under the operation of our statute, permitting equitable defences to actions of ejectment, it equally follows that the plaintiff cannot recover; for upon the undisputed facts, it must be taken that the plaintiff had notice of all the facts which existed, except the fact that the defendant had sued out the writ of error.

But what was it of which the...