Shea v. Shea

• Citation: 55 S.W. 869,154 Mo. 599
• Parties: SHEA et al. v. SHEA.
• Decision Date: 05 March 1900
• Court: United States State Supreme Court of Missouri

55 S.W. 869

154 Mo. 599

SHEA et al. v. SHEA.

Supreme Court of Missouri, Division No. 2.

March 5, 1900.

EJECTMENT — ATTACHMENT — COLLATERAL ATTACK — DEFENSE — INSTRUCTIONS — LACHES — ESTOPPEL.

1. That the death of defendant, in attachment subsequent to the issuance of a writ and before judgment, rendered the judgment thereon void, cannot be raised collaterally in ejectment against a purchaser under execution sale of the property attached, as jurisdiction in attachment is presumed to be obtained by the levy of a writ properly issued, and the judgment thereon is valid and binding until reversed or set aside in a direct proceeding for that purpose.

2. Where the record in attachment showed that the action was brought and writ levied prior to defendant's death, it was error in ejectment against the purchaser under the execution sale of the property attached to instruct that "if defendant was dead at the time of the trial and rendition of the judgment" in attachment, or if the action was instituted, judgment rendered, and the whole proceeding had after defendant's death, the sheriff's deed given to the purchaser on sale under execution on said judgment was void; and to refuse to instruct that, if the judgment was rendered after defendant's death, it is not subject to collateral attack, and the deeds thereunder to the purchaser at execution sale conveyed the title as of the time of levy of writ.

3. In ejectment for land, the title to which defendant claimed under an execution sale against plaintiff's grantor, where it appeared that plaintiffs, with knowledge of defendant's title and without asserting any right, permitted her for nearly 10 years to make valuable improvements and to pay taxes thereon, they will be estopped from claiming same, because of gross laches.

Appeal from circuit court, Polk county; Argus Cox, Judge.

Action by Margaret E. Shea and others against Louisa E. Shea. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

This is an action of ejectment for certain lands in Polk county, Mo. The plaintiffs are four of the nine children and grantees of Patrick Shea, late of said county. The defendant is in possession of said lands under sheriff's deeds to said lands under judgments rendered against said Patrick Shea. The answer is a general denial and an equitable estoppel. Judgment was rendered for plaintiffs for four-ninths of the land, and defendant appeals.

Rechow & Pufahl, for appellant. Ross & Sea, for respondents.

GANTT, P. J. (after stating the facts).

The facts developed on the trial were these: Patrick Shea, the common source of title, moved to Polk county, Mo., some time prior to the year 1878. He came from the state of Kentucky. He was a married man, and left a wife in Kentucky, by whom he had eight children. Mrs. Louisa E. Shea, believing him to be a single man, was married to him in Polk county, and had one child, a daughter, by him, named Norah Shea, sixteen years old at the time of the trial in the circuit court. In the spring of 1887, a man representing Patrick Shea's wife in Kentucky came to Polk county to investigate his affairs. That visit and some papers found by Mrs. Louisa Shea about that time developed that he had a wife living in Kentucky, from whom he had never been divorced when he married Mrs. Louisa E. Shea, the defendant herein. By the assistance of Louisa E. Shea, Patrick had accumulated some 400 acres of land, worth $4 to $6 per acre, and money and personal property to the amount of $12,000. Alarmed at the prospect of an indictment for bigamy, Patrick Shea rapidly sold off his personal property, and collected and sold his notes through the assistance of his grown son John Shea. Mrs. Louisa E. Shea, upon learning that she was not the lawful wife, commenced an action by attachment against Patrick Shea to annul her marriage to him, and for alimony, and also in a second count for damages in the sum of $2,500, based upon her services to him for nine years, induced by his fraudulent conduct and the concealment of his prior marriage. The petition was filed March 20, 1887. An affidavit was filed charging said Patrick with having absconded and absented himself from his usual place, so that the ordinary process of law could not be served on him, and with removing his property and effects out of this state to hinder, defraud, and delay his creditors, and that the damages for which Mrs. Shea was suing were for injuries arising from his commission of a felony, to wit, bigamy. A bond for $5,000 was given and approved, and the land in suit was duly attached on the 21st day of March, 1888, and an abstract duly filed on the same day in the recorder's office. Publication was made as required by law. At the May term, 1888, judgment was rendered for plaintiff for $1,500 damages, sustaining the attachment, and awarding a special execution. Execution issued, and the land was sold, and Mrs. Louisa E. Shea became the purchaser, and received a sheriff's deed to the land, October 31, 1888, and a second sheriff's deed on May 2, 1890, for the same premises under another judgment by attachment for $318, for moneys of said Louisa which said Patrick owed her. Patrick so effectually disposed of his personal property that nothing of consequence was realized on the attachments from that source. It is conceded that the deed to his children, the plaintiffs, under which they claim title, was voluntary and without other consideration than love and affection. Indeed, Mr. Ross, who drew the deed, testified it was executed because Patrick was threatened with a prosecution, and his wife in Kentucky was demanding $5,000. None of the children were present when the deed was made. It was made and handed to Mr. Ross for them. It is not pretended that any consideration was paid or intended to be paid. Ross was not the agent of the heirs. Either he or John Shea put the deed to record. John did not represent the heirs in getting the deed. Having disposed of his property, Patrick Shea went to Canada. He died at Windsor, Canada, March 30, 1888. The court gave declarations for plaintiffs, over defendant's objections, as follows: "(1) If the court finds for plaintiffs, it will find the amount due each as damages and rents in accordance with his or her interest from the time of the commencement of this action. (2) It is admitted that both plaintiffs and defendant, Louisa E. Shea, claim title to the land in controversy under the same person, Patrick Shea. (3) If the defendant, Patrick Shea, was dead, at the time of the trial and rendition of the judgment upon which the first sheriff's deed offered in evidence by defendant was founded, the deed so offered is void, and conveyed no title. (4) That, if the suit was instituted, the judgment rendered, and the whole proceedings had after the death of Patrick Shea, the defendant therein, in the cause wherein the second deed offered by defendant was founded, such judgment, proceedings, and the deed thereunder were void, and the deed conveys no title." To which action of the court in giving said...