Sachse v. Clingingsmith

• Decision Date: 04 March 1889
• Citation: 11 S.W. 69,97 Mo. 406
• Parties: Sachse, Appellant, v. Clingingsmith et al
• Court: Missouri Supreme Court

11 S.W. 69

97 Mo. 406

Sachse, Appellant, v. Clingingsmith et al

Supreme Court of Missouri

March 4, 1889

Appeal from Cape Girardeau Circuit Court. -- Hon. J. D. Foster Judge.

Reversed and remanded.

Linus Sanford for appellant.

(1) The sheriff's deed was regular, and was prima-facie evidence of the facts there instated, and the circuit court committed error in excluding the same. Carpenter v. King, 42 Mo. 219; Perkins v. Quigley, 62 Mo. 498; Waddel v. Williams, 50 Mo. 216. (2) The transcript of the judgment, and the record thereof, were both competent and relevant testimony, and the court erred in excluding them. Ruby v. Railroad, 39 Mo. 482; Transe v Owens, 25 Mo. 334; Coonce v. Munday, 3 Mo. 264; Burke v. Miller, 46 Mo. 262, and cases supra. (3) The certified copy of the execution issued by the justice of the peace, together with the return of the constable, were competent evidence, and the court erred in excluding them. Cases supra. An investigation of the record in this case will show that every step in the proceedings of the justice and the constable are regular, except the justice's attempts to show facts in his certificate to the transcript that should occur in the record. But this was corrected by obtaining a certified copy of the execution itself, with the return of the constable endorsed thereon, which our courts in so many cases have held sufficient. Then following this, the deed is perfect.

R. B Oliver for respondents.

(1) As execution creditor and purchaser, plaintiff is chargeable with all irregularities and omissions. In contemplation of law, he is not a bona-fide purchaser. He pays nothing. His position is very different from that of a stranger. Rorer on Judicial Sales (2 Ed.) p. 336, sec. 864; Harrison v. Doe, 2 Blackf. 1.; Bank v. Flagg, 31 Ill. 290; Twogood v. Franklin, 27 Iowa 239; Gatt v. Powell, 41 Mo. 420; Vogler v. Montgomery, 54 Mo. 577. (2) The circuit clerk has no authority to issue an execution upon the filing of the transcript of a judgment, where the transcript shows (as this one does) that the defendant was served by summons, in Applecreek township, in said county, until an execution shall have been issued by the justice, directed to the constable of the township in which the defendant resides, and returned, that the defendant had no goods or chattels whereof to levy the same. R. S., sec. 2999; Freeman on Executions, p. 16, sec. 14; Coonce v. Munday, 3 Mo. 374; Burke v. Flournoy, 4 Mo. 117; Murry v. Lafteen, 15 Mo. 353; Carr v. Youse, 39 Mo. 353; Lindeman v. Edson, 25 Mo. 105. (3) It will be remembered that the offering of plaintiff was the transcript made by the justice himself, and not a copy of the record required to be made by the circuit clerk, nor was it the record made by the circuit clerk. (4) As a purchaser under execution he must produce the judgment and writ of execution. Therefore the execution was properly excluded. Wright v. Crockett, 7 Mo. 125; Dorneron v. Williams, 7 Mo. 138; Bump on Fraud. Conv. (2 Ed.) p. 468. (5) A non-suit with leave to move to set it aside will bring before the supreme court the question of law and facts passed upon by the trial court, only when the non-suit is taken in a case at law. In equity cases the court below must adjudicate upon the law and facts in order to bring them up on appeal or writ of error. Gill v. Clark, 54 Mo. 415; Conn v. Ferree, 60 Mo. 17.

Barclay J.

OPINION

Barclay, J.

This is a suit to set aside a deed alleged to be fraudulent, and an interference with plaintiff's claim of title to certain land.

The pleadings need not be recited at length.

The petition presents the theory of plaintiff's ownership of the land in question by virtue of a purchase at an execution sale under certain proceedings (the nature of which will fully appear later); that the execution debtor had made a fraudulent voluntary conveyance to one of the other defendants to hinder and delay creditors, especially plaintiff. This conveyance the court is asked to set aside.

The answer, besides a general denial, contains a special defense, asserting an equitable title in one of defendants ante-dating plaintiff's present claim. The reply takes issue with the new matter in the answer.

At the trial, the plaintiff offered in evidence the sheriff's deed under which he claimed. It contained the usual recitals of levy and sale, and apt words of description and conveyance of the land in dispute. It also recited the following, viz.: "Whereas, Theodore Sachse, on the twenty-eighth day of October, 1882, before F. H. Welteke, Esq., a justice of the peace within and for Applecreek township, in Cape Girardeau county, state of Missouri, recovered against Nancy Welty forty-five dollars, for debt and damages, and the sum of four dollars and forty cents for costs, upon which judgment an execution was issued and directed to the constable of Applecreek township against the goods and chattels of Nancy Welty, which execution was returned not satisfied, as appears from a transcript of the judgment aforesaid, filed in the office of the clerk of the circuit court, on the thirteenth day of March, A. D., 1883, upon which transcript of judgment an execution issued from the clerk's office of said court in favor of said Theodore Sachse and against said Nancy Welty, dated the thirteenth day of March, A. D., 1883, directed to the sheriff of Cape Girardeau county, and the same was to me delivered on the thirteenth day of March, 1883, by virtue of which said execution, I, the said sheriff, did, on the thirteenth day of March, A. D., 1883, levy upon," etc.

This deed was duly acknowledged. But the court (on objection) excluded the instrument. Plaintiff then offered a certified copy of the transcript of the justice's judgment on file in the circuit clerk's office. This copy recited the docket entries in the cause, including the judgment in favor of plaintiff. The certificate to the transcript was as follows: "I, F. H. Welteke, a justice of the peace, within and for Applecreek township, in Cape Girardeau county, Missouri, do certify that the above is a true and correct transcript of the judgment as by me rendered, in the above entitled cause. And I further certify that an execution was issued on the above judgment, on the twenty-eighth day of October, 1882, directed to the said constable of Applecreek township, returnable in ninety days, and that the same was to me returned on the twenty-ninth day of January, 1883, not executed, and endorsed by said constable, 'not satisfied, because no goods or chattels could be found of the defendant, Nancy Welty, whereon to levy the same.' Given under my hand this March 8, 1883. F. H. Welteke, Justice of the Peace.

"Recorded March 13, 1883. H. R. English, Circuit Clerk."

Except the recital in this certificate, no statement of the issue and return of the justice's execution appeared in, or with the transcript.

The court rejected this offer.

Plaintiff then offered a certified copy of the execution issued by the justice on his judgment with the nulla bona return thereon, but this also was ruled out.

Plaintiff then gave...