Turner v. Edmonston
| Decision Date | 17 March 1908 |
| Citation | 109 S.W. 33,210 Mo. 411 |
| Parties | A. G. TURNER et al., Appellants, v. J. O. EDMONSTON et al |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. Jas. D. Barnett, Judge.
Reversed and remanded.
F. R Jesse and Robertson & Robertson for appellants.
(1) It is immaterial in this case whether a writ of error be a new action or a continuation of the original action for the reason that at the time J. O. Edmonston bought from his brother, W. A. Edmonston, the case of Roden v. Helm et al was pending in the Supreme Court upon the writ of error. Macklin v. Allenberg, 100 Mo. 337; Barber Asphalt Pav. Co. v. Young, 94 Mo.App. 204; Macklin v. Schmidt, 104 Mo. 361; Buford v. Packet Co., 3 Mo.App. 159; Bailey v. Wenn, 113 Mo. 155; Dodd v. Lee, 57 Mo.App. 167; Real estate Savings Institution v. Collonious, 63 Mo. 290. (2) Again, it is immaterial whether the commencement of the new suit in Roden v. Helm et al. in the Supreme Court begins with the issuing of the writ of error or with the service of the notice of the writ under the statute, for the notice had been served and the case heard the first time and was pending for rehearing when J. O. Edmonston, the defendant herein, purchased from W. A. Edmonston. O'Reilly v. Nicholson, 45 Mo 160; Turner v. Babb, 60 Mo. 342; Burnham v. Smith, 82 Mo.App. 35. (3) W. A. Edmonston, being the attorney of Roden, and purchasing from him by quit-claim deed, stood in the shoes of Roden. Gott v. Powell, 41 Mo. 596; Railroad v. Brown, 43 Mo. 294; Board of Trustees v. Fry & Woods, 192 Mo. 552; Galpin v. Page, 18 Wall. 375; Freeman on Judgments, sec. 484; Simonds v. Catlin, 11 Cal. 63; Stroud v. Casey, 25 Tex. 754. (4) The deed from W. A. Edmonston to J. O. Edmonston by its contents put the purchaser, J. O. Edmonston, upon notice as to the nature of W. A. Edmonston's title and that the property was trust property not only for Thomas and Anna Helm but for all of their children, including Mamie and Richard, not parties to the action, in Roden v. Helm et al., and having such notice, he is precluded from defending against an action brought by the beneficiaries for the property in his hands. Paul v. Fulton, 25 Mo. 156; Coffee's Admx. v. Crouch, 28 Mo. 106; Condit v. Maxwell, 142 Mo. 266; Darling v. Potts, 118 Mo. 506. (5) The defendant, J. O. Edmonston, having purchased with notice, and having purchased pending the litigation, is bound to restore all that he had received as though he were a party to the original action of Roden v. Helm et al. Board of Trustees v. Fry & Woods, supra; Gott v. Powell, supra; Railroad v. Brown, supra; Macklin v. Allenberg, supra; DiNola v. Allison, 143 Cal. 106. (6) Had Roden, the original purchaser at the execution sale, retained the title, restitution might have been reached by a motion in the original case of Roden v. Helm et al., but as the title had been transferred in the meantime to a third person, it was necessary to resort to an independent action to enforce restitution, and ejectment is the proper remedy. Railroad v. Brown, 43 Mo. 294; Haebler v. Meyers, 132 N.Y. 363; Zimmerman v. Bank, 56 Ia. 133. (7) The reversal of the judgment annuls all orders and judgments based upon it, and the judgment entered in the case of Edmonston v. Helm et al. falls with the reversal of the judgment of Roden v. Helm et al. Where one judgment afterward reversed furnishes the foundation for a subsequent judgment, the reversal of the first judgment annuls the second judgment. Smith v. Railroad, 49 Mo.App. 54; Butler v. Eaton, 141 U.S. 240; Cowdery v. Bank, 139 Cal. 298; McAllister v. Bridges, 40 S.W. 70; Atkison v. Dixon, 96 Mo. 577.
P. H. Cullen and Allen Stallings for respondents.
(1) This cause was tried by the court without the aid of a jury and the finding of facts in dispute is as binding upon the appellate court as a verdict of a jury. Gould v. Smith, 48 Mo. 43; Gaines v. Fender, 82 Mo. 497; Irwin v. Woodmansee, 104 Mo. 403; Cook v. Farrah, 105 Mo. 492; Magee v. Burch, 108 Mo. 336; Godman v. Simmons, 113 Mo. 122; Fisher v. During, 53 Mo.App. 548; Rice v. Arnold, 58 Mo.App. 97; Baumhoff v. Railroad, 171 Mo. 120. (2) Where the trial court is intrusted with both facts and the law, this court must assume the facts to be as the court found them, and has only the power to review the law declared by such court. Swayze v. Bride, 34 Mo.App. 414; Furniture & Carpet Co. v. Davis, 86 Mo.App. 296; Curtis v. Tyler, 90 Mo.App. 345. (3) When the judgment defendant fails to give notice of appeal until after a sale of property under the judgment, and the judgment plaintiff becomes the purchaser, he is entitled to the same protection as any other bona-fide purchaser, if the judgment is afterwards reversed, and upon the case being remanded, he again recovers. Frazier v. Crafts, 40 Iowa 110; Gossam v. Donaldson, 68 Am. Dec. 723; Parker v. Andersen, 5 T. B. Mon. 455; Benningfield v. Reed, 8 B. Mon. 105; Yocum v. Foreman, 14 Bush 494; South Fork Canal Co. v. Gordon, 2 Abb. 488; Den v. Dellinger, 2 Murphy (5 N. C.) 272; McAusland v. Pundt, 1 Neb. 211; Tuttle v. Gates, 24 Me. 396; Stimson v. Ross, 51 Me. 556; Cariell v. Ham, 4 Greene (Iowa) 460; Holmes v. Buckner, 67 Tex. 107; Wood v. Chopin, 13 N.Y. 509; Riley v. Martinelle (Cal.), 21 L. R. A. 33 and note. (4) The purchaser is protected in the case of a sale made during the pendency of an appeal where such appeal did not operate as a supersedeas, even though the purchaser knew of the pendency of the appeal. Marks v. Cowles, 61 Ala. 299; Bank v. VanMeter, 10 B. Mon. (Ky.) 68; Rankin v. Eastin, 2 Ky. L. Rep. 427; Brenden v. Zion Church, 71 Md. 83; Garittee v. Popplein, 73 Md. 322; Henning v. Punnett, 4 Daly (N. Y.) 543; Hale v. Langford, 60 Tex. 555; 23 Am. and Eng. Ency. Law (2 Ed.), 1011; 3 Freeman on Executions, sec. 345, p. 1975. (5) A writ of error is a new suit, and not merely a continuance of the suit the judgment in which it is brought to reverse. Macklin v. Allenberg, 100 Mo. 337; Pierce v. Stinde, 11 Mo.App. 364; Irwin v. Jeffers, 3 Ohio St. 389; Phillips v. Benson, 85 Ala. 416; Gould v. Sternberg, 128 Ill. 510; Maynard v. May, 25 S.W. 879; Benson v. Yellot, 76 Md. 159; Kramer v. Wellendorf, 129 Pa. St. 547; Shannon v. Newton, 132 Pa. St. 375. (6) Where the execution creditor, after purchasing at his own sale, the judgment not having been superseded by bond, sells the property to a third person who purchases for value and without notice, and the judgment is afterward reversed on appeal, the prevailing rule is that the title of the purchaser is not affected by the reversal, and that he may retain the property as against the execution debtor. Thompson v. Wooldridge, 103 Mo. 505; Vogler v. Montgomery, 54 Mo. 577; Bartlett v. Glasscock, 4 Mo. 62; McAusland v. Pundt, 93 Am. Dec. 358; Withers v. Jacks. 12 A. S. Rep. 143; Horner v. Zimmerman, 45 Ill. 14; Gentean v. Wisely, 47 Ill. 433; Puterbaugh v. Moss, 11 N.E. 199; Graham v. Eagan, 15 La. Ann. 97.
This is an action of ejectment for the possession of lot thirty-one of Mrs. Spark's Southern Addition to the city of Mexico, Missouri, the purpose of the suit being to enforce restitution of said property, which was sold under execution issued upon a judgment rendered in the case of Roden v. Helm et al., which judgment was, on writ of error, reversed in Division Two of this court, the case being reported in 192 Mo. 46, 90 S.W. 434.
The petition is in the usual form; the answer, a general denial; ouster laid March --, 1904; damages claimed, $ 600.
The cause was tried by the court sitting as a jury, the trial resulting in a judgment for the defendants, from which judgment, after an unavailing motion for a new trial, plaintiffs appeal.
The facts, briefly stated, are as follows:
On March 21, 1899, Thomas F. Roden obtained a judgment against Thomas Helm, Anna S. Helm, Elizabeth Helm (now Mrs. Matthews) and A. G. Turner for $ 1,495.10, and the same was declared a lien upon the lot in controversy and some farm land in which the said Helms had an interest, the said real estate having been deeded to said A. G. Turner, as trustee for their use and benefit. The sale, under execution, was made on the 16th day of June, 1899, and Thomas F. Roden, the judgment creditor, became the purchaser of said lands. Afterwards, on the 29th day of July, 1899, Thomas Roden, by quit-claim deed, conveyed said lands to his attorney, W. A. Edmonston, brother of the defendant herein, the consideration being $ 1,780. Thereafter, on August 11, 1899, W. A. Edmonston instituted two suits in ejectment for the possession of the lands described in said judgment, and obtained judgment in each case, and on March 17, 1904, said cases coming on for hearing in the Supreme Court, Division No. 1, the judgments of the lower court were affirmed, the causes being styled Edmonston v. Carter et al. and Edmonston v. Helm et al., 180 Mo. 515, 79 S.W. 459.
On August 28, 1900, the defendants in the case of Roden v. Helm et al. sued out a writ of error, but gave no bond nor asked for nor obtained a supersedeas in said case. Due notice of the issuing of said writ was served upon W. A. Edmonston, attorney for Roden, and holder of said quitclaim deed from Roden. The case was submitted in the Supreme Court on October 18, 1903, and afterwards, on March 23, 1904, the judgment of the lower court was affirmed. Immediately thereafter the plaintiffs in error filed motion for a rehearing, which motion was sustained and a rehearing granted on the 10th day of May, 1904. The case was again set down for argument in Division No. 2 of this court on October 14, 1905, and thereafter, on the 25th day of October, 1905, a decision was rendered reversing the judgment of the court below, and remanding the cause.
By deed, dated ...
To continue reading
Request your trial