Strain v. Murphy

• Decision Date: 31 January 1872
• Citation: 49 Mo. 337
• Parties: STRAIN, Respondent, v. MURPHY, Appellant.
• Court: Missouri Supreme Court

49 Mo. 337

STRAIN, Respondent,

v.MURPHY, Appellant.

Supreme Court of Missouri.

January Term, 1872.

Appeal from Dade Circuit Court.

Sherwood, Young & Bray, for appellant, cited in argument Faust v. Echols et al., 4 Coldw. 397; Fleece v. Gordu, 1 Dav. 306; McClain v. Winchester, 17 Mo. 49.

Parkinson & Bicknell, and Hardin & Buller, for respondent.

I. The statute of 1864, to supply lost records, was a repeal of all common-law remedies upon lost judgments. It gives new and substantial remedies to the creditor. The statute does not afford merely a cumulative remedy. Such an interpretation overthrows the reason of its enactment. It was intended to provide record evidence and leave nothing at the mercy of parol testimony. (Sedgw. Const. & Stat. Law, 113, 323; 5 Abb., N. Y., Dig. 94; Sess. Acts 1863-4, p. 45, §§ 3, 4; Dash v. Van Kleek, 7 Johns. 477 et seq.; Brown v. King, 39 Mo. 380;Broom's Leg. Max. 113; Humphrey v. Lundy, 37 Mo. 320; Besshears v. Rowe, 46 Mo. 501.)

II. No one would buy land at sheriff's sale if, upon examination of the records of the court from which the execution emanated, he could find no judgment whatever. There could manifestly be no fair sale under such circumstances. But no injury could result to the creditor by requiring him to restore his judgment under the statute before issuing execution, for his restored judgment would take its lien from the date of the original judgment. (See Gen. Stat. 1865, ch. 33, p. 184, § 15, which is similar to the Session Acts of 1863-4, supra.)

ADAMS, Judge, delivered the opinion of the court.

This was an action of ejectment brought by the respondent against the appellant for several town lots in the town of Greenfield in Dade county. The petition and answer were in the usual form. The case was submitted to the court, and the finding and judgment were in favor of the respondent for the recovery of the possession of the lots, and damages and costs.

Both parties looked to one W. W. Holland as the common source of title. The appellant, however, did not connect himself or offer to connect himself with this title; his object being merely to show an outstanding title derived from the same source as that of the respondent. That being the case, we must take it for granted that Holland's title was good. To maintain the issue on his part the respondent produced the record of a conveyance to himself from said W. W. Holland and wife, with certificate of acknowledgement and the clerk's entry of filing for record, all of date January 27, 1868, having first proved that the original could not be found after search by the parties with whom the same had been deposited.

This record of the deed was read against the objections of the appellant, who saved his exceptions. Respondent then introduced and read in evidence a deed from Pharaoh Cook and wife to said Holland, of date September 30, 1865, and the record of a deed from Holland and wife to Pharaoh Cook, of date September 5, 1863. This record was introduced against the objections of the appellant, after a foundation had been laid by testimony to show that the original was not in the power of the respondent. The respondent then introduced Holland as a witness, who testified that he took possession of part of the lots in 1852, and the remainder in 1854, and continued to reside there, claiming the property as his own, till 1865; and the respondent then proved the value of the rents and profits, and rested. The appellant, to maintain the issue on his part, relied on a sheriff's deed executed by S. E. Shaw, former sheriff of Dade county, for the premises in dispute, to Rankin, Garrett & Montgomery, of date October 22, 1869, being after the commencement of this suit. The recitals of this deed show that it was founded on a judgment in favor of said Rankin, Garrett & Montgomery, of date of November 12, 1862, recorded in Dade Circuit Court against said Holland and one J. M. Montgomery for $1,174.40, and execution thereon of date July 15, 1865, and sale October 27, 1865. He then introduced a deed in fee with full covenants, etc., from said Rankin, Garrett & Montgomery to Mary J. Murphy for said premises, of date January 18, 1868; and for the purpose only of showing notice of an outstanding title, offered to introduce a sheriff's deed from the same sheriff on same judgment execution and sale, dated November 4, 1865, which did not contain the recital of the exact day of the month when the sale took place; but in every other respect the recitals seem to be the same as the deed of 1869. The court excluded this deed as being inadmissible for the purposes offered, and the appellant excepted; and the appellant then introduced J. D. Montgomery to prove that he entered into possession after his purchase in 1865, and here closed his evidence.

The respondent, as rebutting evidence, read the record of a judgment of revival of the first-named judgment in favor of Rankin, Montgomery & Garrett, against Holland, which was rendered under the statute of 1864, at the November term, 1865, of the Dade Circuit Court, reciting that no execution had been issued on the first judgment. And then he introduced evidence to the effect that in 1863 the clerk left the record-book at a brick house; and when he returned and recovered the book he found that about fifty-seven pages had been cut out, and that the record was now in about the same condition as he found it. On inspection of the record-book there were no entries therein of any court being held in 1862.

The appellant then offered to read what purported to have been the execution under which the...