Walden v. Bolton

• Decision Date: 28 February 1874
• Citation: 55 Mo. 405
• Parties: WILLIAM W. WALDEN, Respondent, v. JESSE A. BOLTON AND ROBERT M. GRAHAM, Appellants.
• Court: Missouri Supreme Court

55 Mo. 405

WILLIAM W. WALDEN, Respondent,

v.JESSE A. BOLTON AND ROBERT M. GRAHAM, Appellants.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Livingston Circuit Court

Broadus & Pollard, for Respondent.

Wm. D. McGuire and A. S. Harris, for Appellants.

VORIES, Judge, delivered the opinion of the court.

This action was brought by the plaintiff against the defendant, Bolton, as the plaintiff in an execution, and the defendant, Graham, who is the sheriff of Livingston county, having said execution in his hands to be executed, to restrain and enjoin a sale of land belonging to the plaintiff and levied on by said execution, on the ground that the judgment, upon which the execution was issued, was satisfied.

The petition in substance, charges, that previous to the 8th day of July, 1863, defendant, Bolton, was the holder by assignment of three several promissory notes, which had before that time been executed by plaintiff to one Caleb S. Stone, and assigned by said Stone to defendant, Bolton, which said notes were for the payment of two hundred and twenty-five dollars each; that said notes were executed to said Stone for and in consideration of a tract of land in the petition described; that on the 8th day of July, 1863, defendant, Bolton, recovered a judgment against the plaintiff on said notes, in which said judgment or decree, the vendor's lien on the land for which the notes were given was foreclosed, and said land ordered to be sold for the payment of said judgment; that on the 24th day of October, 1864, an execution was issued on said judgment, and on the 18th day of May, 1865, said judgment and execution were fully satisfied and discharged in the following manner: “This plaintiff agreed with defendant, Bolton, that Bolton would purchase or cause to be purchased the N. 1-2 of the N. E. 1-4 of the N. E. 1-4 of Sec. 7, Township 57, Range 23, situate in said county and State, the real estate of this plaintiff and which was levied upon to satisfy said judgment, and was advertised to be sold on said 18th day of May, 1865, by G. Harker, the then sheriff of this county, the same being the consideration for which the two last described notes were executed, and for the payment of which, defendant, Bolton, had obtained an order of this court for a sale of said property last described, for the enforcement of the vendor's lien, as the assignee of said Stone * * * and for the further consideration, that this plaintiff should make no further claim or demand off of said Stone for $140, which they, the said Stone and Bolton were owing this plaintiff; that said Harker, as sheriff as aforesaid, did expose the last described realty for sale on the said 18th day of May, 1865, and in pursuance of said agreement between this plaintiff and said Bolton, he, Bolton, procured one Mary Smith to purchase said realty at the nominal price of $310, no part of which was paid by her or any one for her, or by defendant, Bolton, except the sum of $32 95-100, the cost of said Harker in making said sale, which was paid by said Bolton; that defendant, Bolton, caused said property to be purchased according to the said agreement, and released this plaintiff of any and all further liability thereby to him upon said judgment.”

It is further charged, that the land so purchased was of the full value of the amount due by said judgment, and was so estimated by the parties and was received and accepted by Bolton as a full satisfaction thereof; that Bolton now holds and controls the land; that he still holds said judgment against plaintiff without having satisfied the same further than to enter a credit thereon for the small sum bid for said land, at the sale aforesaid, and threatens to collect the same from plaintiff; that said judgment by the said acts and agreements of the parties has become in law and equity fully satisfied; that on the 20th day of June, 1871, defendant, Bolton, procured an execution to be issued from the Clerk's Office of the Circuit Court of Livingston county on said judgment, against the property of plaintiff and in favor of defendant, Bolton, which execution has been placed in the hands of the defendant, Graham, as sheriff of said county for collection, and which has been levied on lands of the plaintiff which are described in the petition, and which lands have been advertised for sale by said Graham as sheriff of said county, on the 15th day of December, 1871, to satisfy said execution; that said Graham, if not restrained by this court, will proceed to sell said land so levied on and advertised under the execution now in his hands; that a sale so made will work great and irreparablc damage to plaintiff, for which he has no adequate remedy at law, and will be and constitute a cloud on the title of the land so to be sold.

It is further charged, that the defendant, Bolton, resides in a portion of the State remote from the residence of the plaintiff, and if the injunction is not granted, plaintiffs will be compelled to seek a partial remedy by suit at law in the county where defendant resides, which would be attended with great expense and inconvenience; that plaintiff is a man of moderate means and unable to expend large sums of money in such litigation; that the attempt on the part of defendant to sell said land under execution is made for the purpose of harassing plaintiff, and by such fraudulent means to recover the amount of said judgment from defendant twice; he well knowing that plaintiff is a man of limited means, and unable to litigate with a man of plaintiff's wealth.

Plaintiff prays judgment that the defendant, Graham, may be restrained from any sale of the land under said execution, and that defendant, Bolton, be perpetually enjoined from further proceeding in the collection of the same, and for general relief.

To this petition the defendant, Bolton, filed an answer specifically denying every material allegation therein. Subsequently to the filing of the answer defendant filed a motion to dissolve the injunction which had been temporarily granted in the cause, because the...