Sheppard v. Enright

• Decision Date: 05 July 1916
• Docket Number: No. 17964.,17964.
• Parties: SHEPPARD v. ENRIGHT.
• Court: Missouri Supreme Court

188 S.W. 186

SHEPPARD v. ENRIGHT.

No. 17964.

Supreme Court of Missouri, Division No. 2.

July 5, 1916.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by Lee Sheppard against Thomas F. Enright. From a judgment for plaintiff, defendant appeals. Affirmed.

R. H. Davis, of Joplin, for appellant. C. V. Buckley, of Joplin, for respondent.

REVELLE, J.

This is an action to determine title to a certain tract of land located in Lawrence county, Mo., containing 40 acres. From a judgment in favor of plaintiff, the defendant appeals.

The record discloses that on the 10th day of May, 1908, judgment was rendered against the herein defendant in the circuit court of Jasper county, Mo., for the sum of $50 in favor of defendant's wife for alimony and possibly attorney's fees. At the time defendant was the owner of the property in controversy. In pursuance of an execution duly issued on the aforesaid judgment the property was, on the 10th day of May, 1909, sold by the sheriff of Lawrence county to A. C. Burnett for the sum of $20, and a deed conveying same was duly executed by that officer. On the 29th day of May following, Burnett executed a quitclaim deed to the plaintiff, and it is under this that plaintiff claims. The only contentions made here by the appellant are that the property was sold for an inadequate consideration, and that the plaintiff herein was his attorney in the proceeding wherein the judgment under which the property was sold was rendered, and, having bought his client's property, he took and holds same in trust for the client. As to the latter contention, we find in the record only the following evidence: The plaintiff in testifying says that in that proceeding he was the attorney for the defendant's wife, who was therein the adversary of the defendant here. We find no evidence contradictory of this, or even tending to show that the plaintiff was, at that time the defendant's attorney, except the following from the defendant:

"Q. Who were your attorneys in the divorce suit? A. Sheppard & Hendrix."

There is nothing whatever in the record to show that the Sheppard referred to as a member of the firm of Sheppard & Hendrix was the plaintiff herein, and we cannot indulge such a presumption, particularly when there is positive evidence to the contrary and the lower court has found the fact to be otherwise.

Pertinent to the other contention, the record discloses that at the time of the execution sale the property was of the...