Swabey v. Boyers
| Decision Date | 08 May 1934 |
| Docket Number | No. 22795.,22795. |
| Citation | 71 S.W.2d 110 |
| Parties | SWABEY v. BOYERS. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Henry A. Hamilton, Judge.
"Not to be reported in State Reports."
Suit by Amelia Swabey against John A. Boyers. Judgment for plaintiff, and defendant appeals.
Reversed and remanded, with directions.
George Eigel and H. A. Loevy, both of St. Louis, for appellant.
Norman Begeman and Muench, Muldoon & Holland, all of St. Louis, for respondent.
The history of this case is substantially as follows:
In 1914 there was an existing deed of trust on the property involved in this suit, known as 2726 Dalton avenue, St. Louis, Mo., to secure the payment of $1,500 loaned by the plaintiff, Amelia Swabey, to defendant, John A. Boyers. At the time default in payment occurred under the deed of trust, the trustee had died and a successor trustee was appointed by the circuit court of the city of St. Louis at the instance of Mrs. Swabey, who was then represented by Attorney O. J. Mudd, and the successor trustee sold the property under the terms of the deed of trust and the same was bought in by Mrs. Swabey. She then brought an ejectment suit against Boyers to secure possession and obtained a judgment for possession in the circuit court. From this judgment Boyers appealed to the Supreme Court and that court held the sale void on the ground that under the wording of the deed of trust the sheriff of the city of St. Louis should have sold instead of the substitute trustee. This decision was rendered on April 26, 1918. See Swabey v. Boyers, 274 Mo. 332, 203 S. W. 204.
While the ejectment suit was in the Supreme Court, Mrs. Swabey, having gotten into possession of the mortgaged property, discovered that the dwelling thereon protruded 8 feet over the property line and she purchased a strip of land 16 feet wide alongside the Boyers' property, which strip was then in the possession of the defendant, John A. Boyers, and, on June 17, 1915, began an unlawful detainer suit against Boyers in the justice of the peace court to obtain possession of said strip of land. The cause was removed from the justice of the peace court to the circuit court on the ground that title was involved and on August 4, 1915, a judgment was rendered in the circuit court in favor of Mrs. Swabey and against Mr. Boyers for possession of the strip, together with $100 damages and $10 per month rent.
This unlawful detainer suit was appealed to the Court of Appeals and the judgment of the lower court was affirmed on May 4, 1920. See Swaby v. Boyers (Mo. App.) 221 S. W. 413.
After the ejectment suit was remanded to the circuit court, after being passed on by the Supreme Court, a receiver was appointed to take charge of the property at 2726 Dalton avenue, and qualified and was still in charge of it in the year 1920 when the sale took place hereinafter set out.
On August 14, 1920, Mrs. Swabey, through her attorney, O. J. Mudd, caused an execution to be issued out of the office of the circuit clerk of the city of St. Louis on the judgment in the unlawful detainer suit for the $100 damages and interest and costs, which then amounted to $130, making a total of $230, and under this execution the property in controversy was levied on and after due advertisement was sold on the 15th day of September, 1920. Mr. Mudd, bidding for Mrs. Swabey bought the property in for her at $230 and paid the costs to the sheriff.
The defendant, Boyers, who was represented in all of these proceedings by Attorney James T. Roberts, after learning that the sale had been made under the execution, informed his attorney, Mr. Roberts, of that fact and together they went to see Mr. Kilcullen, who was then execution deputy, and handled this execution, and, according to the testimony of Boyers and Attorney Roberts, they discovered that the execution was not signed by the clerk, nor was the seal of the court attached thereto, and Mr. Roberts called the attention of the execution deputy, Mr. Kilcullen, to that fact, and warned him that if he attempted to make a deed under this irregular execution they would hold the sheriff liable on his bond. Anyway, it appears that no deed was ever made to the plaintiff, Mrs. Swabey, to the property sold under the execution. The execution disappeared, could not be found in the clerk's office, and there was nothing in the clerk's office to show that the execution had ever been returned and in the blank space on the clerk's book, where it was customary to make a memoranda of what the sheriff's return was, there had been some four or five lines of writing put in that space, but it was erased as shown by the exhibition of the book at the trial. The judgment was not satisfied on the records of the court.
George P. Weinbrenner, sheriff at the time of the issuance of the execution, was called as a witness by plaintiff and testified that he had no knowledge of the papers in this case nor where they were; that he took all his records except what he filed with the clerk of the court; that he left no records with the new sheriff who came in after him; that he had no idea where the records relating to the case on trial were, nor of the missing execution; that Tom Kilcullen, now dead, handled executions at that time, as his execution deputy; that he was a good execution deputy and very careful in his work.
On September 20, 1920, just five days after the sale, Boyers, through his attorney, James T. Roberts, filed a petition in the circuit court, setting up, in substance, that the sheriff had not yet executed a deed in pursuance of the sale and averring that "said sale and all proceedings had thereunder were void because at the time of said attempted sale the property was in the custody of this court." (This was based on the idea that the property being then in the hands of a receiver was immune from sale under the execution.) It also appears that an unsuccessful effort was made by Attorney Roberts, acting for Boyers, to have Mr. Mudd cited for contempt in causing the property to be sold while in the hands of a receiver.
This petition, so filed by Attorney Roberts on September 20, 1920, did not affirmatively allege that the execution was without the signature of the clerk or that the seal of the court was not attached, but it did ask that the sheriff, George W. Weinbrenner, be permanently enjoined from executing a deed under and by virtue of said sale, and it also averred that if a deed should be executed and put on record, it would be a cloud upon the title of Boyers. This petition was denied by the court on November 10, 1920.
Boyers, through his attorney, Roberts, also filed a petition in the circuit court asking that the sale be set aside, and the trial court sustained a general demurrer to the petition. No further steps were taken at that time, by appeal or otherwise.
The present proceeding, which is before us now on appeal, was begun on October 2, 1931, by the filing in the circuit court of a petition by Mrs. Swabey in the unlawful detainer suit, which set out the fact of the issuance of an execution upon the judgment in said unlawful detainer suit and the levy and sale of the property in the year 1920 by Sheriff Weinbrenner and the purchase of the property by the plaintiff, Mrs. Swabey, as hereinbefore detailed; that George P. Weinbrenner, the then sheriff, failed to execute a deed to her for the real estate and that she has never received a deed therefor; that the original execution delivered to the said sheriff has been lost and cannot now be produced; that she is now entitled to have a deed executed to her for the aforedescribed real estate so purchased by her and praying that the present sheriff of the city of St. Louis be ordered to execute and deliver to her a deed to the said real estate.
The answer to this petition, or motion, filed on November 27, 1931, admitted the issuance of the execution and delivery of same to Weinbrenner, sheriff, and that Weinbrenner did levy upon the property described in the petition and sold same. The following defenses were set out in the answer:
First, that the execution was void because it did not bear the signature of the clerk, nor the seal of the court; second, that the sheriff had been warned that he would be liable on his bond if he executed a deed in pursuance of such sale; third, that no report of the sale was made by Sheriff Weinbrenner to the court for approval; fourth, that the sale was void and a fraud on defendant because made without his knowledge and the property, then worth $5,000, sold for $230; fifth, that the property was then in the hands of a receiver and the sale was made in contempt of court; sixth, that defendant was not notified of the issuance of the execution nor was any effort made by the sheriff to levy upon goods and chattels before levying upon...
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