Turner v. Edmonston

• Decision Date: 31 March 1908
• Citation: 212 Mo. 377,110 S.W. 1076
• Parties: TURNER et al. v. EDMONSTON et al.
• Court: Missouri Supreme Court

110 S.W. 1076

212 Mo. 377

TURNER et al. v. EDMONSTON et al.

Supreme Court of Missouri, Division No. 2.

March 31, 1908.

Rehearing Denied May 19, 1908.

1. LIS PENDENS—PENDENCY OF ACTION—PURCHASE PENDING ACTION—RIGHTS ACQUIRED.

A judgment creditor obtaining a judgment establishing a lien on real estate purchased the premises at execution sale, and conveyed the same to his attorney, who had been served with notice of a writ of error to review the judgment, and who had appeared in the Supreme Court on the original hearing. Held, that the attorney was not an innocent purchaser, but took the premises subject to the result of the suit on rehearing.

2. APPEAL AND ERROR—REVERSAL — RESTITUTION —COMPELLING—MODE.

A judgment establishing a lien on real estate was reversed on writ of error after the judgment creditor had purchased the premises at execution sale, and had conveyed the same to a third person who had placed a tenant in possession. The third person and the tenant were not parties to the suit in which the judgment was rendered. Held, that the judgment debtor must resort to ejectment to obtain restitution, since restitution in the original suit was inadequate.

3. ABATEMENT AND REVIVAL — ANOTHER ACTION PENDING.

A judgment establishing a lien on real estate was reversed on writ of error after the judgment creditor had purchased the premises at execution sale, and had conveyed the same to a third person. The judgment debtor brought suit against the judgment creditor and the third person for an accounting for profits received while in possession of the premises, and subsequently brought ejectment against the third person. Held, that the suit for an accounting did not prevent the maintenance of ejectment; the suit for an accounting not involving the subject-matter involved in the action of ejectment, and the judgment creditor not being a proper party to the action in ejectment.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by A. G. Turner and others against W. A. Edmonston and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

See 109 S. W. 33.

This cause is now pending before this court upon appeal on the part of the defendants from a judgment of the circuit court of Audrain county in favor of the plaintiffs. The action was one in ejectment for 240 acres of land in Audrain county. The petition was filed in the circuit court on March 30, 1906, and was in the ordinary form in actions of that character. The answer of the defendants consisted, first, of a general denial; second, there is pleaded the judgment obtained in the case of Roden v. Helm et al., 192 Mo. 71, 90 S. W. 798, detailing the circumstances by which the defendant W. A. Edmonston became in possession of the real estate here sued for; third, the defense is made that the judgment of the Supreme Court reversing the judgment of the circuit court in Roden v. Helm et al. is void; fourth, then defendants plead ownership of the judgment rendered by the circuit court in Roden v. Helm et al.; fifth, the rendition of another judgment is pleaded in favor of the plaintiffs and against the Helms rendered in the original suit of Roden v. Helm et al., after the reversal of the case in the Supreme Court. There is also pleaded in connection with the fifth defense the pendency of a motion for restitution filed in the case of Roden v. Helm et al., also an action in accounting filed by these same plaintiffs against this same defendant and others, to account for the rents received by W. A. Edmonston from said lands accruing between the date of turning over the possession of this land to W. A. Edmonston and the commencement of this ejectment suit.

The history of the litigation involved in this controversy is fully set forth in the case of Turner et al. v. J. O. Edmonston et al., 109 S. W. 33, decided at the sitting of this court on February 17, 1908, which is not yet officially reported. There was a motion for rehearing filed in that case, which was by the court overruled, and learned counsel who represented respondents in that case, and who represents appellants in the case at bar, concedes in his motion for rehearing in the former case that this case is a companion case to the case of Turner et al. v. J. O. Edmonston et al., heretofore referred to as being decided by this court. No one can read the records and briefs of counsel representing the appellants and respondents in the case at bar without being convinced that the leading and controlling propositions are substantially the same as those in the case heretofore referred to decided by this court. The legal propositions are substantially the same. The land, of course, is different. The claim of title of the plaintiffs in...