Real Estate Saving Inst. v. Collonious

• Decision Date: 31 October 1876
• Citation: Real Estate Saving Inst. v. Collonious, 63 Mo. 290 (Mo. 1876)
• Parties: REAL ESTATE SAVING INST., Appellant, v. JOHN COLLONIOUS, Respondent.
• Court: Missouri Supreme Court

63 Mo. 290

REAL ESTATE SAVING INST., Appellant,

v.JOHN COLLONIOUS, Respondent.

Supreme Court of Missouri.

October Term, 1876.

Appeal from St. Louis Circuit Court.

Martin & Lackland, for Appellant.

The proceedings in the Supreme Court prosecuted by the plaintiff to reverse the judgment rendered in the land court, did not constitute notice under the circumstances of this case.

I. The bond taken was inadequate to indemnify the defendants against the injury of tying up their property.

After final decree in favor of defendants in an injunction suit, the restraining effect of the injunction is dissolved. Why should a lis pendens be of greator force than an injunction? If during the appeal the defendant disposed of the property, the judgment at the next trial should be for damages.

II. The purchaser under the sheriff's sale in the Northcraft case, acquired title long after they had legal notice of the plaintiff's title. No sane man would have purchased at that sale without examining the county records.

There never was a lis pendens, even in the land court, affecting more than the share of Ellen J. Northcraft, which was 2-30 of the land. She, as plaintiff, had no equity to disturb the rest of the title.

The sale of the interest of Martin himself, and all the other defendants, rests upon the consent of the parties alone. And the facts that the sale took place under the form of a sheriff's advertisement does not change its legal effect. And the plaintiff's title here, going back of this voluntary transfer of title by defendants, is first in time and in equity. (See generally LeNere vs. LeNere, 2 Lead. Cas. in Eq. p. 170 [3rd Am. Ed.]; Jones vs. Lusk, 2 Met. [[[Ky.] 356; Allen vs. Case, 13 Wis. 621; Davis vs. Christian, 15 Gratt. [[[Va.] 11; Harrington vs. Slade, 22 Barb. 166; McCutcheon vs. Miller, 31 Miss. 65; Diamond vs. Laurence, 37 Penn. 353; Ehrman vs. Knidrick, 1 Met. [[[Ky.] 146; Camp vs. Forrest, 18 Ala. 112.)

Lee & Adams, for Respondent.

Appellant took with notice of the Northcraft bill under th doctrine of lis pendens. (Sto. Eq. Jur., vol. 1, §§ 405, 406; Carter vs. P. & M. Bank, 22 Ala. 743; Hayden vs. Bucklin, 9 Paige Ch. 512; Sugd. Vend., 2d vol. 281; Newl. Cont. p. 506; 7 Blackf. 243; Murray vs. Ballou, 1 Johns. Ch. 576, and cases cited; Murray vs. Lylburn, 2 Johns. Ch. 441, and cases cited.)

Having acquired jurisdiction of the subject matter of the suit, the land court had jurisdiction for all purposes to do full and complete justice between the parties. (Corby vs. Bean, 44 Mo. 379; Rozier vs. Griffith, 31 Mo. 171; Cox vs. Smith, 4 Ch. 275; Hasford vs. Mervin, 5 Barb. 62.)

If there was any irregularity in the order of sale, appellant cannot avail itself of it in this proceeding. (Bernecker vs. Miller, 44 Mo. 102; Martin vs. McLean, 49 Mo. 361; Miles vs. Davis, 19 Mo. 408.)

SHERWOOD, Judge, delivered the opinion of the court.

Plaintiff sues in ejectment for the recovery of a lot on the corner of Ninth and Buchanan streets in the city of St. Louis.

The answer of defendant was a statutory general denial, and also an equitable defense showing that a partition sale on which plaintiff's title was ultimately dependent, had been set aside and the deed made in conformity thereto canceled by the decree of a court of equity; that while the proceedings were pending in that court, plaintiff, with notice of such pendency, loaned W. C. Martin, who had purchased at the sale sought to be set aside, a sum of money, and that under the deed of trust, given to secure this loan, a sale had taken place, and plaintiff had become the purchaser and recipient of a deed during the pendency of the proceedings in equity, and with notice thereof. It was also alleged that the Metropolitan Bank of St. Louis, of which defendant was the tenant, had derived title to the premises in dispute in 1865 through the medium of a sale ordered by the court, which had decreed the cancellation of the deed made to Martin.

The reply, among other things, denied any notice, knowledge or information of the pendency of the suit referred to at the time Martin executed the deed of trust.

At the trial, Lewis Martin was acknowledged as the common source of title in May, 1851. The records introduced in evidence by the parties litigant in support of their respective claims show, in substance, this state of facts:

That in a partition suit, instituted in the St. Louis land court by the heirs of Martin in consequence of the premises, the same now sued for, being incapable of division in kind, an order of sale was made in February, 1857, followed by a sale in the next May, and a deed by the sheriff to Wm. C. Martin, one of the heirs, in the June following; that in August, 1859, Martin, to secure the plaintiff in the loan of a sum of money to him, executed a deed of trust on the land in dispute; that in October, 1861, default having been made in the payment of the debt, a sale occurred whereat plaintiff became the purchaser, receiving a deed from the trustee; that in the St. Louis land court, Ellen Northcraft, one of the heirs of Lewis Martin, together with her husband, instituted suit against Wm. C. Martin and the other heirs to set aside the partition sale and cancel the deed made to him, on the ground of fraud; that in this suit general relief was also prayed; that service was had as to all the defendants in September, 1857; that judgment on a demurrer filed by them to the petition went in their favor; that on appeal taken at the same term, March, 1858, the Supreme Court, in June, 1859, reversed the judgment and remanded the cause to the land court, where, after answer by defendants, an interlocutory decree was entered, setting aside the sale and deed to Martin, ordering a new sale with a reference, to determine the respective interests of the parties thereto; that subsequently, at the March term, 1865, on the coming in of the referee's report, a final decree was entered ordering a sale of the premises and disbursement of the proceeds therefrom arising, in accordance with the interests of the parties as previously ascertained; that this sale thus ordered took place in that year, and a deed was made by the sheriff conveying the disputed premises to Adolph Fisher, who, in turn, conveyed to Deggendorf, and he to defendant's landlord, the Metropolitan Bank.

The court below found for plaintiff and gave judgment accordingly, which was reversed in general term, and plaintiff has appealed here.

There is nothing incident to the facts of this case even remotely tending to exempt it from the operation of the rule relative to pending suits which the defendant has invoked. Whatever rights plaintiff acquired had their origin in the deeds of trust executed by Martin in August, 1859, after a judgment in his favor had been reversed in the Supreme Court and the cause remanded. The fact that the mandate did not reach the lower courts until several days subsequent to the execution of the deed of trust does not and cannot alter the principle necessarily applicable to such cases. The cause of Northcraft against Martin was still pending and undetermined, and this was notice to the world that the subject matter of that suit, to-wit, the premises now sued for, were in litigation and awaiting such decree as the court might render. Nor is the result at all affected by the...