Quell v. Hanlin

• Decision Date: 30 April 1884
• Citation: 81 Mo. 441
• Parties: QUELL et al. v. HANLIN, Appellant.
• Court: Missouri Supreme Court

81 Mo. 441

QUELL et al.

v.HANLIN, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Clinton Circuit Court.--HON. G. W. DUNN, Judge.

AFFIRMED.

B. J. Casteel and Ramey & Brown for appellant.

Seiler had an equitable interest in the land in controversy, to which the lien of the judgment against him attached, and which was subject to levy and sale under execution. R. S. 1879, §§ 2354, 2356, 2730, 2336; also Ib., § 2767; Levy v. Thompson, 4 How. 17; Anwerthe v. Mathiot, 9 S. & R. 397; Russell's Appeal, 15 Pa. St. 319; Cardiff v. Anderson, 3 Binn. 4; Brant v. Robertson, 16 Mo. 130; Lumley v. Robinson, 26 Mo. 364; Yeldell v. Barnes, 15 Mo. 444; 1 Jones on Mort., § 740; O'Neill v. Capelle, 62 Mo. 202; Johnson v. Huston, 17 Mo. 58. The agreement between Livengood and Seiler makes the assignment simply a security for the money advanced. Tibeau v. Tibeau, 22 Mo. 77.

Hiram Smith, Jr., and Thos. E. Turney for respondents.

(1) When one purchases land in his own name with the money of another, “the presumption at once arises that the benefits accruing from the purchase are to go to him who paid the consideration.” Kelly v. Johnson, 28 Mo. 248; Miller v. Davis, 50 Mo. 572; Darrier v. Darrier, 58 Mo. 222, 226;“and parol evidence is admissible to show the intention of the parties,” even when the taking of the title in the name of the nominal purchaser is authorized. Darrier v. Darrier, 58 Mo. 227, and cases cited. (2) Seiler had no interest in the land which was subject to levy and sale under execution. Broadwell v. Yantis, 10 Mo. 403; Branch v. Robertson, 16 Mo. 149; McIlvaine v. Smith, 42 Mo. 45; Morgan v. Bouse, 53 Mo. 219. (3) There is no misjoinder of parties plaintiff, but if there was the objection is waived. R. S., § 3519; Kellogg v. Matin, 62 Mo. 429.

MARTIN, C.

This was an action of ejectment in the usual form. The defendant in answer pleaded a general denial, along with a statement of facts constituting the title under which he claimed. It, also, included an offer or tender of $230, for the purpose of discharging a lien of that amount in favor of the plaintiff, Quell, in the event a lien should be adjudged in his favor.

It is unnecessary to consider the motion for a judgment on the pleadings, which concluded with a replication of matters at length. The pleadings were sufficient to admit the evidence presented by the parties, and as the court rendered judgment for plaintiff upon the evidence and pleadings, it is only necessary for us to inquire whether the title of plaintiffs justified a recovery in an action of ejectment.

The Hannibal & St. Joseph Railroad Company is admitted by both sides as the common source of title. On the 12th of January, 1880, the company executed and delivered to one Lucius L. Seiler two written contracts, wherein it is recited that said Seiler had made the first of four payments for the parcels of land in controversy amounting to $230, and that upon making the remaining three at specified times, the company would make conveyance of land to him. He was to have the immediate right of possession and cultivation until default in the deferred payments. By virtue of a judgment against Seiler of April 9th, 1878, an execution issued on the 19th day of January, 1880, under which levy was made on this land on the same day. The sale under this levy was made on the 12th of April, 1880, at which the defendant, Robert Hanlin, became the purchaser. If Seiler was the beneficial owner of this land as disclosed by the written contracts, at any time during the lien of the judgment under which the defendant purchased, and before enforcement of the lien by execution and sale, then the equitable estate with the right of immediate possession passed to the defendant. It appeared in evidence that the money paid by Seiler for the land belonged to one Leonard C. Livengood, who held toward him the attitude of a helping friend.

The evidence tends to show that with this money of Livengood's the land in controversy was to be purchased by Seiler, and the contract taken either in the name of Livengood or in the name of Seiler, and then assigned to Livengood. The land was thus purchased by Livengood's money, and the contract of purchase was assigned to Livengood by Seiler, by assignment of the same date with the date of purchase, but which was not acknowledged until the 17th of February, 1880. On the 20th of March, 1880, Livengood assigned the contract to Mr. Quell, the plaintiff, who, on the 23rd of March, 1880, instituted this action. This evience, which was clearly competent, tended to prove that Seiler never was beneficially seized of the land, but that the equitable title...