Shaw v. Padley

• Citation: 64 Mo. 519
• Parties: THEODORE A. SHAW, Plaintiff in Error, v. WILLIAM PADLEY, Defendant in Error.
• Decision Date: 30 April 1877
• Court: United States State Supreme Court of Missouri

64 Mo. 519

THEODORE A. SHAW, Plaintiff in Error,

v.WILLIAM PADLEY, Defendant in Error.

Supreme Court of Missouri.

April Term, 1877.

Error to Bates County Circuit Court.

F. J. Galloway, with E. J. Smith, for Plaintiff in Error, cited: Davis vs. Ownby, 14 Mo. 170; Valentine vs. Havener, 20 Mo. 133; Stillwell vs. McDonald, 39 Mo. 282; Reed vs. Ownby, 44 Mo. 204; Marr vs. McIntosh, 21 Mo. 541; Peyton vs. Rose, 41 Mo. 257; Freem. Judg. §§ 195, 200; Allen vs. Mandaville, 26 Miss. 397; Edwards vs. Bank Smith, 35 Ga. 213; Herrington vs. Herrington, 27 Mo. 560; Murray vs. Ballou, 1 Johns. Ch. 576; Lyle vs. Bradford, 7 Mon. 116; 2 Sugd. Vend. 544, 1045; 1 Vt. 318; Kellogg vs. Fancher, 23 Wis. 21; Wickliff vs. Breckenridge, 1 Bush. 443; Miller vs. Sherry, 2 Wal. 237; Warring vs. Warring, 7 Abb. 472; Goodwin vs. McGibee, 15 Ala. 232.

C. C. Bassett, for Defendant in Error, cited: Henri vs. The Grand Lodge, & c., 59 Mo. 581; Inhabitants of Brookfield vs. Carter, 57 Mo. 315; Curtis vs. Curtis, 54 Mo. 351.

NORTON, Judge, delivered the opinion of the court.

This was an action brought before a justice of the peace to recover damages for an alleged trespass of defendant, in cutting timber on the lands of plaintiff.

Defendant appeared and on his plea of title the cause was certified to the Bates Circuit court for trial.

The cause was tried by the court without the intervention of a jury, and on the trial it was agreed that the title to the land on which the trees were cut was, according to the record, in one Jesse P. Harrell on the 13th March, 1871, and that Padley, the defendant, was at that time in possession of the land; that on the 2d day of August, 1871, said Harrell, by his attorney, T. J. Galloway, filed in the office of the circuit clerk of Bates county his petition in ejectment against said Padley, to recover the possession of said lands; that the petition and writ were served on Padley the 11th day of August, 1871, and in November, 1871, Padley filed answer alleging that deed to Harrell was fraudulent; that on the 7th of August, 1871, Harrell executed to said T. J. Galloway a mortgage to said land, with power of sale to secure him in the payment of a note for one hundred and fifty dollars, which said mortgage was recorded in the recorder's office of Bates county, on the 21st of November, 1872; that on the 7th day of August, 1872, by the consent and agreement of said plaintiff, Harrell and his attorney Galloway, and the defendant, Padley, and his attorneys Bassett and Johnson, the circuit court of Bates county rendered a judgment in the ejectment suit in favor of plaintiff, for the possession of said land and for costs, and also a judgment for defendant for the sum of four hundred dollars against the plaintiff, which was declared to be a lien on said land, with a stay of execution for eleven months; and it was further adjudged that the defendant was to keep the crops then being grown and cultivated on said land; that on the 24th day of November, 1873, the said land was sold under the said mortgage of Harrell to Galloway, and plaintiff, Shaw, became the purchaser, receiving a deed from the trustee, which was duly recorded in the recorder's office on the 25th day of November, 1873.

It appears that execution regularly issued on the said judgment, in favor of Padley against the said Harrell, and a sale was had under the same, of said lands, on the 27th of November, 1871, at which sale said C. C. Bassett became the purchaser, and received a deed to the same; that prior to said execution Harrell had been put in possession of said land, and that on the 4th of February, 1874, by the authority of said Bassett, he had cut and carried away timber trees from said land, worth fifteen dollars.

The court rendered judgment for defendant on the above state of facts, from which plaintif...