Riggs v. Goodrich

• Decision Date: 31 October 1881
• Citation: 74 Mo. 108
• Parties: RIGGS v. GOODRICH, Appellant.
• Court: Missouri Supreme Court

74 Mo. 108

RIGGS

v.GOODRICH, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Miller Circuit Court.--HON. GEO. W. MILLER, Judge.

AFFIRMED.

Smith & Krauthoff for appellant.

Silver & Belch, Draffen & Williams and Edmund Burke for respondents.

NORTON, J.

This is an action of ejectment instituted in the circuit court of Miller county, by the heirs of Owen Riggs, deceased, to recover the possession of several tracts of land described in the petition. The answer denies that plaintiffs have either title to the lands sued for, or the right to the possession of them, and sets up title in the defendant. Upon a trial of the cause, plaintiffs obtained judgment, from which the defendant has appealed.

Both parties claim through Daniel Cummings, as the common source of title. The plaintiffs claim under a sheriff's deed executed in virtue of a sale made by the sheriff of Miller county on the 6th day of October, 1869, under an execution which issued upon a judgment in favor of William North and William P. Scott, composing the firm of North & Scott, and against said Daniel Cummings. The said judgment was rendered by the Miller county circuit court on the 27th day of April, 1864, in a proceeding to foreclose a mortgage made in 1858 by said Cummings, to secure the payment of certain notes given by said Cummings to said North & Scott. The said mortgage embraced all the lands sued for except the northwest quarter of section 17, township 41, range 12. Cummings having been served with process in said suit and having appeared to the action, the judgment was a general one and directed that if the mortgaged property was not sufficient to satisfy the debt, damages and costs, then the residue to be levied of the lands, etc., of said Cummings. An execution was issued upon this judgment and delivered to the sheriff of Miller county, who, on the 31st day of March, 1869, levied on the said northwest quarter section 17, township 41, range 12, not embraced in said mortgage. Under this execution both the land described in the mortgage and the said quarter section not described therein were sold to Owen Riggs, the ancestor of plaintiffs, on the 6th day of October, 1869, the land described in the mortgage not being sufficient to pay the said judgment. The sheriff making said sale having removed from the county before executing a deed, and Riggs, the purchaser, having died, the heirs of said Riggs presented their petition to the said circuit court at its March term, 1876, setting up the above facts, and praying that the then sheriff of Miller county be ordered to execute to them a deed, who, under an order of the court, executed and acknowledged a deed in due form conveying the land in suit to plaintiffs. It is upon this deed that plaintiffs rely as showing their title.

The defendant, in support of his title, offered evidence showing that on the 15th day of April, 1868, Milo Blair, register in bankruptcy, made an assignment of all the real and personal property owned by said Daniel Cummings, a bankrupt, on the 22nd day of February, 1868, to Samuel Harrison, assignee. Defendant also next offered in evidence a deed from said Harrison, as assignee, conveying to defendant the real estate sued for, under a sale made to defendant on the 20th day of January, 1869, which sale was reported to and approved by the United States district court. This deed was offered in evidence as showing defendant's title. Defendant also introduced, as a witness, Edmund Burke, the attorney of said North & Scott in the suit instituted to foreclose the mortgage, who testified that two days before the sale to Owen Riggs under the judgment of foreclosure against said Cummings and under which plaintiffs claim, the said Riggs paid him, as said attorney, some money, and executed a note with Samuel T. Harrison as surety for the full balance of all that was due on the said judgment; that this note was given and accepted with the distinct understanding that it was not to operate as a satisfaction of the judgment against Cummings, but that the sale was to go on, that Riggs was to have permission to control the execution sale, and wanted to buy the land at said sale to save himself; that several months after the sale the amount due on the judgment, for which he had taken Riggs' note previous to the sale, was paid by Riggs; that he considered the foreclosure judgment unpaid at the time of the sale, and up to the time he received the money from Riggs; that he never demanded any money from the sheriff on account of Riggs' bid at said sale, and never received any from said sheriff. Other evidence was offered bearing on the question of estoppel, which we deem unnecessary to notice, as other questions in the case are decisive of it.

1. JUDGMENT LIENS: change of statute.

It is contended by counsel for defendant that, inasmuch as the northwest quarter of section 17, township 41, range 12, was not included in the...