Russell v. Grant

• Decision Date: 24 May 1894
• Citation: 26 S.W. 958,122 Mo. 161
• Parties: Russell v. Grant, Appellant
• Court: Missouri Supreme Court

26 S.W. 958

122 Mo. 161

Russell v. Grant, Appellant

Supreme Court of Missouri, Second Division

May 24, 1894

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

In this proceeding, plaintiff in the court below succeeded in obtaining an injunction perpetually enjoining defendant from removing certain houses built on lots 12 to 18 inclusive, in block 12, "James Goodin Place," an addition to Kansas City. Plaintiff is the purchaser from a purchaser under a deed of trust sale of the properties in question while defendant relies on a purchase made by him on a foreclosure sale of a mechanic's lien, at which he bought the houses built on the lots.

The substantial facts in the case are these: Prior to October 6 1888, James T. Holmes was the owner of lots 12 to 18 inclusive, in block 12 of James Goodin Place, an addition to Kansas City. For some days prior to that time negotiations had been pending between Holmes and James Goodin for a sale of the lots to Goodin, and parol negotiations between Goodin and one Joel Harford, for a sale of the lots to Harford, and between Harford and the firm of Harkness & Russell for a loan from the latter on the property. On October 6, 1888, which was Saturday, the negotiations were concluded, and on that day Harford and wife delivered to Harkness & Russell a deed of trust, dated and acknowledged October 4, 1888, conveying the lots to L. A. Laughlin, as trustee, to secure a note for $ 7,050, due in ninety days, given by Harford to Harkness & Russell. On the same day Harkness & Russell paid on Harford's account $ 2,200 of the loan to Goodin, as part of the purchase price of the lots. Goodin at once paid part of it to Holmes and received from Holmes and wife a warranty deed of the lots.

On the same day Goodin delivered to Harkness & Russell the deed from Holmes and wife to himself and from himself and wife to Harford; the deed from Goodin to Harford was never delivered to him. On Monday morning, October 8, 1888, Harkness & Russell filed the three instruments for record in the recorder's office at Kansas City, simultaneously. The deed from Holmes to Goodin was recorded at 9:50 A. M., from Goodin to Harford at 9:52 A. M., and from Harford to Laughlin at 9:55 A. M. These deeds were all handed to the recorder at the same time and he of his own head filed them as if they had been handed him at the different times noted on the deeds. For a part of the purchase price in the sale from Goodin to Harford, Goodin took from Harford a second deed of trust on the lots. The lumber to build the houses began to be delivered it seems just before the deeds were filed for record, or at any rate contemporaneously therewith.

Harford proceeded to erect six frame dwelling houses on the lots and the balance of the loan made by Harkness & Russell was paid out by them on orders from Harford for labor and material used in the construction of the houses. On February 19, 1889 the Interstate Lumber Company, a corporation, filed a mechanic's lien against the property for material furnished Harford for building the houses between October 8, 1888, and November 21, 1888; amounting to $ 2,460.79. The affidavit to the lien statement is made by Walter Delarue. No name appears in the body of the affidavit. The affiant does not state he makes the affidavit for the company, nor is such allegation made in the petition filed in the suit to enforce the lien, or anywhere in the record proper in that suit.

On the day of filing the lien, the Interstate Lumber Company filed a petition in the Jackson circuit court to enforce the lien. Interstate Lumber Co. v. Harford. The petition makes as defendants, Harford as owner and contractor, also Goodin, Harkness & Russell, because of their claiming some interest in the property, which interest was under the deeds of trust in their favor. Besides the usual allegations the petition states that on December 26, 1888, Harford delivered to plaintiff his note for $ 2,415.05, due sixty days after date for a part of the account sued on. Only $ 45.74 of the account was not included in the note as shown by the petition. This note was also signed by James Goodin. The petition asks that the lien be established against the real estate and improvements.

On filing the petition a summons was issued for the defendants. Defendants Goodin, Harkness and Russell were personally served in Jackson county on February 20, 1889. Service of an alias summons directed to the sheriff of Jackson county, Missouri, was had on Harford in Franklin county, Kansas, on July 24, 1889, by the sheriff of said Franklin county. The return does not show that the affidavit of service is made before the clerk of the court of which affiant is an officer. Nor does the evidence show that the court of which the clerk certifies was a court of record. On April 8, 1889, Harkness & Russell filed an answer to the petition alleging their interest in the premises to be as beneficiaries in the deed of trust from Harford, and that the same was prior to all improvements and denying the other allegations of the petition. Goodin and Harford did not answer, but made default.

The cause came on for trial December 13, 1889, during the October term. Harkness & Russell objected to the introduction of the lien in evidence, which objection was sustained by the court. Thereupon to get rid of the obnoxious defendants, plaintiff dismissed his suit as to Harkness & Russell, and having thus gotten rid of them, the court rendered judgment in its favor. The judgment was rendered December 14, 1889, and was a personal one against Harford for $ 2,617.05, and established the demand as a lien against the real estate and improvements.

An execution was issued December 21, 1889, on this judgment against the real estate and improvements. Under this execution the sheriff advertised the lots and improvements to be sold on May 23, 1890. On May 16, 1890, the plaintiff Russell, who had purchased the property on March 9, 1889, filed a petition for an injunction in the Jackson circuit court to enjoin this sale. Russell v. Interstate Lumber Company. A temporary injunction was granted May 19, 1890, but on final hearing on May 24, 1890, the injunction was dissolved and the petition dismissed. On appeal to the supreme court the judgment of the circuit court was affirmed on the ground the petition showed the sale would be null and void as to the plaintiff. Russell v. Interstate Lumber Company, 112 Mo. 40. On June 20, 1890, the execution was returned unsatisfied by the sheriff by order of plaintiff's attorneys.

On May 26, 1890, Goodin filed a motion in the cause to set aside the judgment against him because of irregularity, on the ground the petition showed it should have been rendered for only $ 45.75. On May 29, 1890, Harford also filed a motion to modify the judgment. On May 31, 1890, the court entered a modified judgment by setting aside the personal judgment as to Goodin and establishing the lien against the houses only. This was a mistake as to Goodin, as the former judgment was not a personal one against him. This modification was made at the second term of court, after that at which judgment was rendered and no notice of it was given to anyone but Harford and Goodin.

Another execution was issued June 21, 1890, on the modified judgment. This execution was against the houses only. Under this last execution the sheriff levied on the houses and after twenty days' notice of sale by advertisement in a newspaper, sold them at the court house door on July 29, 1890, for $ 79. At such sale by the sheriff, the houses were purchased by M. R. Grant, the defendant in the suit at bar, but who was acting for the Interstate Lumber Company. This purchase was a purchase by and for the Interstate Lumber Company, defendant; the vice-president of that company, admitting this much in his answer.

The note of $ 7,050 given by Harford to Harkness & Russell and secured by a deed of trust on the lots was not paid at maturity. Accordingly, at their request, the trustee, Laughlin, pursuant to the provisions of the trust deed, duly advertised and sold the property on February 28, 1889, for $ 2,500 to C. T. C. White. On March 9, 1889, White sold and conveyed the lots, together with other property, to Russell, the plaintiff in this suit, for an expressed consideration of $ 25,000.

From the time Russell bought the property up to September 3, 1890, the day this suit was begun, he continued in the quiet and peaceable possession of the lots and houses, claiming to own the same. On that day defendant Grant came upon the premises with several workmen, having apparatus for moving houses, and tore out the foundation of one house and put jackscrews under it with the avowed intention of moving it and the other houses off the lots.

Thereupon plaintiff filed his petition in the case at bar, in the circuit court, to enjoin the defendant from moving the houses. A temporary injunction was granted and on final hearing on July 1, 1891, was made perpetual, from which judgment defendant has appealed to this court. The amended petition of plaintiff, filed January 27, 1891, and upon which the case was tried, states the ownership and possession of the lots by plaintiff, and the wrongful acts and threats of defendant. The answer of defendant sets forth the particulars of defendant's claim of title to the houses under the sale in the mechanic's lien suit, including the judgment in said lien suit. The reply of plaintiff states the particulars of his title from Harford and attacks the proceedings and sale in the lien suit on specified grounds of irregularity and want of jurisdiction as heretofore set forth.

Affirmed.

Kagy & Bremermann for appellant.

(1) It is elementary law that the judgment of a court of general jurisdiction,...