Tate v. Sanders

• Decision Date: 05 July 1904
• Citation: 149 S.W. 485,245 Mo. 186
• Parties: CHARLES H. TATE v. LON SANDERS et al., Appellant
• Court: Missouri Supreme Court

149 S.W. 485

245 Mo. 186

CHARLES H. TATE v. LON SANDERS et al., Appellant

Supreme Court of Missouri, Second Division

July 5, 1904

Rehearing Denied 245 Mo. 186 at 207.

Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor and Hon. Hugo Muench, Judges.

Reversed and remanded (with directions).

Randolph Laughlin for appellant.

(1) The court erred in overruling appellant's plea in abatement. Robbins v. Conley, 47 Mo.App. 506; Humphries v Dawson, 38 Ala. 204; Rizer v. Gillpatrick, 67 Kan. 567; Sherwood v. Hammond, 4 Blackf. (Ind.) 504; Eicman v. State, 75 Ind. 46; Bank v. Bank, 7 Gill. (Md.) 428; Webster v. Randall, 19 Pick. (Mass.) 20; Wales v. Jones, 1 Mich. 245; Calliman v. Railroad, 61 Mich. 15; Bickerton v Burrell, 5 Maule & Selwyn, 383; 16 Cyc. 773; McDermott v. Barnum, 19 Mo. 208; Snodgrass v. Emery, 66 Mo.App. 462; Camp v. Railroad, 62 Mo.App. 85; Busby v. Altes, 140 Mo.App. 715; Ratican v. Depot Co., 80 Mo.App. 528; Reischick v. Klingelhoefer, 91 Mo.App. 430; Sanders v. Dixon, 114 Mo.App. 244; O'Reilly v. Nicholson, 45 Mo. 166; Institution v. Collonious, 63 Mo. 294; McIlrath v. Hollender, 73 Mo. 105; Dodd v. Lee, 57 Mo.App. 171; Turner v. Edmonston, 210 Mo. 420; R. S. 1909, Sec. 2811; Hilton v. Smith, 134 Mo. 508; Kane v. Railroad, 112 Mo. 38; Cooley v. Warren, 53 Mo. 156; Barton v. Martin, 60 Mo.App. 351; Foote v. Clark, 102 Mo. 294. Appellant is substantially injured by the overruling of his plea in abatement. R. S. 1909, Sec. 8211; Dilworth v. Curts, 139 Ill. 520. Moreover appellant has and is entitled to the advantage of opening and closing the proofs in that case. (2) On the merits of this appeal appellant claims against respondents Love, Deacon and Lambert, relief in the alternative, viz.: First, as judgment creditor of Dixon; and failing that, second, under the Manning title. In addition to the relief claimed against Deacon and Lambert, appellant claims cumulative relief against Tate, viz.: First, damages; and second, rents; and third, costs. Before proceeding to consider appellant's claims against Love, Deacon and Lambert, it is necessary to inquire whether appellant is free to have those claims considered separately; that is, whether he is at liberty to urge his rights as judgment creditor unfettered by the equities which inhere in his claim under the Manning title. Appellant contends that he has such right, and upon three grounds, viz.: Merger. -- Sanders' rights as judgment creditor were not merged in the Manning title, because the doctrine of merger will not be applied by a court of equity to the union of two estates in the same person, when it would (1) conflict with the intention, or (2) be against the interest of such person. Sater v. Hunt, 66 Mo.App. 527; Hayden v. Lauffenburger, 157 Mo. 96; Bray v. Conrad, 101 Mo. 331. Right to Purchase Peace. -- One having or claiming a lien upon or title to land may, for greater security, or to buy his peace, purchase or procure an outstanding or adverse claim or title without estopping himself to deny its validity, and without impairing or affecting his original claim. Mattison v. Ausmuss, 60 Mo. 551; Wall v. Shindler, 47 Mo. 282, 285; Landes v. Perkins, 12 Mo. 259; Vasquez v. Ewing, 24 Mo. 39; Cummings v. Powell, 97 Mo. 536; 16 Cyc. 688. Tabula in Naufragio. -- Sanders' equity being equal, if not superior, to the equities of Deacon and Lambert. Sanders had the right to purchase the legal title (or what might prove to be the legal title) for the purpose of obtaining the advantage. McNary v. Southworth, 58 Ill. 473; Carroll v. Johnston, 55 N.C. 120; Bispham's Prin. of Eq. (5 Ed.), p. 374. (3) The Dixon-Verneuil deed was and is subject to impeachment. R. S. 1909, Sec. 2820. Where a deed is void (not merely voidable) as to the grantee, it is void as to all claiming under him. Rust v. Goff, 94 Mo. 519. The four printed blank forms of deed, signed by Dixon in May, 1905, were nullities when signed for want of a written description of any interest or estate upon which they could take effect. R. S. 1909, Sec. 2783; Smith on the Law of Fraud (1897), 854; Fox v. Courtney, 111 Mo. 147; Ayres v. Probasco, 14 Kan. 175; Adamson v. Hartman, 40 Ark. 58; Ingram v. Little, 14 Ga. 173; Burns v. Lynde, 6 Allen (Mass.) 305; Simms v. Hervey, 19 Iowa 273; Williams v. Crutcher, 5 How. (Miss.) 71; Ayres v. Harness, 1 Ohio 173; Preston v. Hull, 23 Gratt. 600; People v. Organ, 27 Ill. 27; Cross v. State Bank, 5 Ark. 525; Upton v. Archer, 41 Cal. 85; Wunderlin v. Cadagan, 50 Cal. 613; Arguello v. Bours, 67 Cal. 447; Bragg v. Fessenden, 11 Ill. 544; Wilson v. Park Comm., 70 Ill. 46; Wallace v. Harmstead, 15 Pa. St. 462; Chase v. Palmer, 29 Ill. 306; Byers v. McClanahan, 6 Gill. & J. (Md.) 250; Basford v. Pearson, 9 Allen (Mass.) 387; Stebbins v. Watson, 71 Mich. 467; Graham v. Holt, 5 Ired. (N. C.) 300; Mosby v. State, 4 Sneed (Tenn.) 327; Gilbert v. Anthony, 1 Yerg. (Tenn.) 69; Wynne v. Governor, 1 Yerg. (Tenn.) 149; Viser v. Rice, 33 Texas 139; Davenport v. Sleight, 2 Dev. & Batt. 381; Kine v. Brooks, 9 Ired. (N. C.) 218; Cross v. Bank, 5 Pike (Ark.) 525; Boyd v. Boyd, 2 Nott. & McC. 125; McMurty v. Frank, 5 Munr. (Ky.) 59; Arrington v. Benton, 19 Ala. 114; Perminter v. McDaniel, 1 Hill (S. C.) 267; United States v. Nelson, 2 Brock. 64, 122; Hord v. Taubman, 79 Mo. 101. The deed being void, and inoperative to pass title as a deed, was equally inoperative to pass title by estoppel. Bushnell v. Loomis, 234 Mo. 371; Burns v. Lynde, 6 Allen (Mass.) 305; Ayres v. Probasco, 14 Kan. 175; Ingram v. Little, 14 Ga. 173; Williams v. Crutcher, 5 How. (Miss.) 71; Preston v. Hull, 23 Gratt. 600; Simms v. Hervey, 19 Iowa 273; Rust v. Goff, 94 Mo. 511; Mays v. Price, 95 Mo. 603; Cummins v. Leedy, 114 Mo. 477. (4) Appellant contends that the case of Sanders v. Dixon was lis pendens on three grounds, viz.: (a) under the statute; (b) at common law; and (c) by estoppel. We shall consider these three grounds in order. (a) Lis pendens under the statute. R. S. 1909, Sec. 8211; Aultman v. Daggs, 50 Mo.App. 280; State v. Wellot, 54 Mo.App. 310; State ex rel. v. Johnson, 132 Mo. 105; Hicks v. Jamison, 10 Mo.App. 35; Sutherland on Stat. Con., p. 317, Sec. 239; p. 319, Sec. 240; St. Louis v. Lane, 110 Mo. 254; Warren v. Paving Co., 115 Mo. 592; Duff v. Carr, 91 Mo.App. 16; Springfield v. Starke, 93 Mo.App. 70; R. S. 1909, Sec. 8057; State ex rel. v. Reilly, 203 Mo. 187; Smith v. Railroad, 143 Mo. 38. (5) The deed from Dixon to Verneuil was "clearly and utterly void" (except as to subsequent incumbrancers and purchasers without notice, R. S. 1909, Sec. 2886, for the reason that it was "made or contrived with the intent to hinder, delay, or defraud creditors of their lawful actions." R. S. 1909, Sec. 2881; Snell v. Harrison, 104 Mo. 188; Allen v. Berry, 50 Mo. 91; Stevenson v. Kilpatrick, 166 Mo. 268; Holdsworth v. Shannon, 113 Mo. 524; Ins. Co. v. Smith, 117 Mo. 293; Garrett v. Wagner, 125 Mo. 464; Snyder v. Free, 114 Mo. 369; Young v. Schofield, 132 Mo. 650; Halsa v. Halsa, 8 Mo. 303; Wallace v. Wilson, 30 Mo. 385; Bierman v. Crecelius, 135 Mo. 386; Walsh v. Stockyards, 66 Mo.App. 260; Hayward v. Ins. Co., 52 Mo. 181; Bank v. Schaumburg, 88 Mo. 228; Turner v. Edmonston, 210 Mo. 411; Baldwin v. Whitcomb, 71 Mo. 651; Ins. Co. v. Smith, 117 Mo. 294; Leeper v. Bates, 85 Mo. 224; Goldsby v. Johnson, 82 Mo. 602; County v. Green, 66 Mo. 498; Long v. Nute, 123 Mo.App. 209; Nelson v. Hall, 104 Mo.App. 473; Stevenson v. Kilpatrick, 166 Mo. 269; Bryant v. Lazarus, 139 S.W. 558; Heatley v. Finster, 2 Johns. Ch. (N. Y.) 158; Moore v. Finster, 2 Johns. Ch. 155; Griswold v. Miller, 15 Barb. (N. Y.) 520; Boils v. Boils, 1 Coldw. (Tenn.) 284; Lynch v. Andrews, 25 W.Va. 751. (6) If we start with the proposition that the Sanders judgment was a lien upon the title, there is no question but that the execution, levy, sale, and sheriff's deed were sufficient to convey that title to and vest it in Sanders. R. S. 1909, Secs. 2172, 2192, 2222, 2231, 2232. Nor is it material that this execution sale was held and the deed made during the pendency of this suit, for the reason that equity adapts its relief to the state of facts existing, not at the beginning, but at the end of the litigation. The rights of the parties as they exist at the time the decree is rendered govern the court in the rendition of the decree. Randall v. Brown, 43 U.S. (2 How.) 406; Kelly v. Galbraith, 186 Ill. 610; 16 Cyc. 479. Nor is it material that the execution sale was not anticipated and pleaded in the cross-bill of Sanders, for the reason that a court of equity, in adjusting property rights, must pronounce upon the titles as it finds them, whether they be properly set forth in the pleadings or not. Ames v. Scudder, 11 Mo.App. 184, 83 Mo. 193; Noble v. Cates, 230 Mo. 202. We contend, therefore, that the lower court should have decreed appellant to be the owner in fee simple of the property. (7) The equity of Sanders is stronger than the equity of Deacon and Lambert. (8) The court erred in failing to decree that Tate was accountable to Sanders for the rentals of the property. Jacobs v. Smith, 89 Mo. 673; Allen v. Berry, 50 Mo. 90; State v. McBride, 105 Mo. 265; Barnard v. Keathley, 230 Mo. 209; Loose v. Wilkinson, 110 N.Y. 195; Bump on Fraud. Conv. (4 Ed.), p. 602, Secs. 625, 626; 14 Am. & Eng. Ency. Law (2 Ed.), p. 342; 20 Cyc. 368, 635.

Selden P. Spencer, John H. Drabelle and Marshall, Henderson & Becker for respondents.

(1) All of the proceedings in this case, subsequent to the order overruling the motion for a new trial, on January 2, 1909 are coram non judice, and there is no legal appeal before this court, and no legal bill of exceptions in the case, and therefore this court has no jurisdiction of the cause, and there is nothing for this court to do except to...