Taylor v. Swearingen

• Decision Date: 19 February 1912
• Citation: 144 S.W. 160,161 Mo.App. 467
• Parties: ELEANOR TAYLOR, Defendant in Error, v. O. H. SWEARINGEN et al., Plaintiffs in Error
• Court: Kansas Court of Appeals

144 S.W. 160

161 Mo.App. 467

ELEANOR TAYLOR, Defendant in Error, v. O. H. SWEARINGEN et al., Plaintiffs in Error

Court of Appeals of Missouri, Kansas City

February 19, 1912

Error to Jackson Circuit Court.--Hon. John G. Park, Judge.

REVERSED.

Judgment reversed.

J. H Olson and W. B. Dickinson for plaintiff in error.

O. E Robinson for defendant in error.

OPINION

ELLISON, J.

Defendants recovered judgment against Joseph G. Taylor and had an execution issued and placed in the hands of the sheriff, who levied upon real estate belonging to plaintiff. She thereupon obtained a temporary injunction restraining the sale on the ground that it would cast a cloud upon her title. The injunction was afterwards made perpetual, and defendants appealed.

It seems that, in point of fact, plaintiff is the wife of Taylor, the defendant in the execution, but that does not appear in any of the proceedings in the case wherein the execution was issued. The execution is against Joseph G Taylor, and plaintiff's name is Eleanor Taylor. So far as the record shows, the two are strangers. A sheriff's deed, on its face, would convey the right and title of a stranger in Eleanor's land. Is she entitled to an injunction on the ground of cloud being cast on her title? Formerly she was not. [Drake v. Jones, 27 Mo. 428; Kuhn v. McNeil, 47 Mo. 389.] But in the revision of 1899, carried into that of 1909, section 2534, the owner may now enjoin an execution issued against a stranger from being levied upon his lands, if a sale and deed under it will cast a cloud on his title. The question, therefore, in this case is, will a sale of plaintiff's property under an execution against Joseph G. Taylor, cast a cloud on her title? And the answer to that depends on whether any evidence would be necessary on the owner's part to resist an action founded on the sheriff's deed. If this property was sold and the purchaser under the sheriff's deed had brought ejectment against plaintiff, his action would have failed, without anything being offered by plaintiff, since there is nothing to show that Joseph G. Taylor had any interest in the property to sell. The question was decided by this court in Payne v. Daviess Co. Saving Assn.,' 126 Mo.App. 593, 105 S.W. 15, and the following rule, stated in Pixley v. Huggins, 15 Cal. 127, was adopted: "Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof would be necessary, the...