State ex rel. Schreiber v. Dickman and American Bonding Company of Baltimore

• Decision Date: 30 April 1907
• Parties: STATE OF MISSOURI ex rel. SCHREIBER, Respondent, v. DICKMAN and THE AMERICAN BONDING COMPANY OF BALTIMORE, Appellant
• Court: Missouri Court of Appeals

102 S.W. 44

124 Mo.App. 653

STATE OF MISSOURI ex rel. SCHREIBER, Respondent, v. DICKMAN and THE AMERICAN BONDING COMPANY OF BALTIMORE, Appellant

Court of Appeals of Missouri, St. Louis

April 30, 1907

Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.

AFFIRMED.

STATEMENT.--Defendant Dickman was sheriff of the city of St. Louis. The other defendant was surety on his official bond. The petition alleges various breaches of the bond, resulting in substantial damage to plaintiff. We adopt the following statement of some of the facts developed at the trial from plaintiff's printed statement of the facts:

"On March 24, 1903, one A. Graber recovered a judgment before a justice of the peace against the Great Western Coffee & Tea Co., for $ 189.81 and costs. The company appealed to the circuit court, and relator Schreiber became surety upon its bond in the sum of $ 400. On December 14, 1903, this judgment was affirmed in the circuit court, and judgment was there entered against said Great Western Coffee & Tea Co., and relator, for the original amount together with costs. On May 3, 1904, an execution was issued upon the judgment, and on May 6, 1904, the sheriff levied the same on three lots of ground belonging to relator, fronting one hundred feet each or three hundred feet in the aggregate, on Calvary avenue, in the city of St. Louis, and also upon relator's dwelling house and lot, occupied by him as his homestead, on Armand street, in said city. According to the undisputed evidence the vacant property was worth at least $ 3,000, and the homestead at least $ 4,500. Relator, at the time, was the head of a family, and was entitled, without question, to claim as exempt from levy, seizure and sale, the homestead property; and entitled, moreover, to claim $ 300 as exempt out of the unimproved property.

The sheriff advertised all of this property for sale, and sold it in lump, to Graber, the execution plaintiff, for $ 150. Relator learned of the sale after the purchaser placed his deed of record, and took immediate steps to recover back his property. On the advice of his counsel, he succeeded in securing a quitclaim conveyance from Graber for $ 500, Graber first demanding $ 750, but finally accepting the $ 500.

"At the time of the levy, and at the time of the sale, the relator was personally known to the sheriff, and his place of business was directly across the street from the sheriff's office. His residence address was written on his qualification, as a surety, before the justice, which qualification was attached to the appeal bond, and was a part of the files in the case out of which the execution was issued."

The sheriff's deputy to whom the execution was delivered testified he was unable to find plaintiff and left a notice in writing at his residence with a female inmate thereof notifying plaintiff of the issuance of the execution and of his statutory exemption rights. Plaintiff's evidence tends to show no such notice was left with any inmate of his residence at any time, by defendant, or any one else. In addition to the five hundred dollars paid by plaintiff to Graber for a reconveyance of his property, plaintiff's testimony tends to show he expended other sums of money for attorney's fees and other costs. The breaches of the bond assigned, briefly stated, are as follows:

"(1) In the making of an excessive levy; (2) In a failure to notify relator of his exemption rights; (3) in a failure to apprise him of his homestead rights; (4) in a levy and sale of his homestead; and (5) in the sale of his unimproved property without his being afforded an opportunity of selecting his exemptions out of the same."

The court gave the following instructions on the measure of damages:

"If the jury find for the plaintiff, they will assess his damages at such reasonable amount as they believe from the evidence he was necessarily compelled to pay the purchaser in order to secure back from the purchaser at the execution sale, the title to the property sold by defendant Dickman; but in no event will their verdict exceed the reasonable market value of the property at the time of sale, or $ 1,000, the amount sought to be recovered by relator."

Verdict and judgment for plaintiff for five hundred dollars.

Judgment affirmed.

Johnson, Houts, Marlatt & Hawes for appellant.

(1) If the defendant Dickman, as sheriff, levied upon and sold relator's property without apprising him of his exemption rights, he could have had the levy and sale set aside by timely application to the court. Stinson v. Call, 163 Mo. 323. (2) As to the levy upon and sale of that part of relator's property which was his homestead, no action for damages will lie against the sheriff and his sureties, because the purchaser of such homestead acquired no title and the relator therefore suffered no injury. Kendall v. Clark, 10 Cal. 17, 70 Am. Dec. 691; Trawick v. Martin-Brown, 79 Tex. 460. (3) The levy upon and sale of a homestead in Missouri is void. Broiles v. Cox, 133 Mo. 242; Creech v. Childers, 156 Mo. 338. (4) No recovery can be had for merely casting a cloud upon title to property unless it is alleged and proven to have been done maliciously. Graham v. Reno, 5 Colo.App. 330; Stark v. Chitwood, 5 Kan. 141; Walkley v. Bostwick, 49 Mich. 374; Dodge v. Colby, 37 Hun 515; Henry v. Dufihlo, 14 La. 48; Chesbrough v. Powers, 78 Mich. 472. (5) Relator, in paying $ 500 to Graber for the reconveyance of his property, also settled his indebtedness to Graber, consisting of the judgment, interest and costs in favor of Graber and against Relator. To the amount thus paid upon his just indebtedness he was not damaged, and the law will not permit him to recover therefor. Stow v. Yarwood, 14 Ill. (4 Peck.) 424; Bates v. Courtwright, 36 Ill. 518; Tripp v. Grouner, 60 Ill. 474; Prescott v. Wright, 6 Mass. 20; Pierce v. Benjamin, 31 Mass. (14 Pick.) 356, 25 Am. Dec. 396; Curtis v. Ward, 20 Conn. 204.

Rassieur, Schnurmacher & Rassieur for respondent.

(1) (a) The sheriff made himself and his surety liable for such excessive levy: Silvers v. McNeil, 52 Mo. 518; Crocker on Sheriffs, secs. 432, 483, 864; 25 Am. and Eng. Ency., 701. (b) And for his failure to notify relator of his statutory exemption rights: State ex rel. v. Barada, 57 Mo. 562; Paddock v. Lance, 94 Mo. 283; State ex. rel. v. Barnett, 96 Mo. 133; State ex rel. v. Lindsay, 73 Mo.App. 473; State ex rel. v. O'Neill, 78 Mo.App. 20. (2) While the sale of homestead was void, yet such sale, and the deed pursuant thereto, created a cloud on relator's record title, which he had the right to remove at the cost of those who created it. Harrington v. Utterback, 57 Mo. 519; Vogler v. Montgomery, 54 Mo. 577. This being merely an application of the general rule which relieves against clouds on title, although created by void proceedings, where the invalidity does not appear of record and extraneous evidence is required to establish it. Henman v. Westheimer, 110 Mo.App. 195; Smith v. Taylor, 78 Mo.App. 634; Bank v. Davidson, 40 Mo.App. 425; Verdin v. St. Louis, 131 Mo. 80; Gardner v. Terry, 99 Mo. 526. (3) The measure of damage, if relator had not been able to procure a reconveyance from the purchaser at the sheriff's sale, would have been the fair market value of the property wrongfully sold, at the date of sale, with legal interest to the date of trial. State to use v. Samuels, 28 Mo.App. 649; State to use v. Bacon, 24 Mo.App. 403; Walker v. Borland, 21 Mo. 289; Baker v. Railway, 52 Mo.App. 602; State ex rel. v. Hope, 121 Mo. 34.

OPINION

BLAND, P. J. (after stating the facts.)--

1. Defendants offered an instruction in the nature of a demurrer to the evidence. The refusal to grant this instruction is assigned as error. It is the duty of the sheriff to notify the execution debtor of his statutory exemption rights before he makes a levy to satisfy the execution (R. S. 1899, sec 3163; Linck v. Troll, 84 Mo.App. 49; Stinson v. Call, 163 Mo. 323, 63 S.W. 729), and if he fails to give the notice and the debtor is damaged thereby, the sheriff is liable on his bond. [The State to use v. Carroll, 9 Mo.App. 275; State ex rel. v. O'Neill, 78 Mo.App. 20; State to use v. Barada et al., 57 Mo. 562; State ex rel. Lewis v. Barnett, 96 Mo. 133, 8 S.W. 767.] Plaintiff's evidence tends to show the sheriff failed to notify him the execution had been issued or apprise him of his statutory exemption rights, although his place of residence in the city of St. Louis was known and his place of business was across the street from the courthouse, and his property had been sold under the execution and a deed made to the purchaser and placed of record before he knew or was informed of any of the proceedings. Plaintiff's evidence also tends to show the levy was on...