Wamsley v. Snow

• Decision Date: 28 September 1932
• Docket Number: No. 30505.,30505.
• Citation: 53 S.W.2d 258
• Parties: CLYDE WAMSLEY v. JOHN S. SNOW ET AL., NETTIE N. REPINE, Appellant.
• Court: Missouri Supreme Court

53 S.W.2d 258

CLYDE WAMSLEY v. JOHN S. SNOW ET AL., NETTIE N. REPINE, Appellant.

No. 30505.

Supreme Court of Missouri, Division Two.

September 28, 1932.

Appeal from Daviess Circuit Court. — Hon. Ira D. Beals, Judge.

REVERSED AND REMANDED.

Walter E. Trice and Daniel H. Frost for appellant.

(1) On January 12, 1921, Omar Burr Snow was convicted of murder in first degree and sentenced to imprisonment in State penitentiary for term of his natural life, and that he was confined in the penitentiary from January 23, 1921, to March 18, 1922. Thus being so sentenced and imprisoned in the State penitentiary he was civilly dead and his estate should have been administered as though he were naturally dead. R.S. 1919, sec. 2295; Williams v. Shackelford, 97 Mo. 322; Ward v. Morton, 294 Mo. 408; Murphy v. Barron, 275 Mo. 282; McLaughlin v. McLaughlin, 228 Mo. 654; Kurfman v. Ry. Co., 15 S.W. (2d) 868. (2) After the death of any defendant, no court or judge shall order the sale of any property or effects attached as belonging to such defendant, but the same shall be sold and the proceeds thereof appropriated in the manner provided by law respecting administrators and executors. R.S. 1919, sec. 1770. (3) No appeal or writ of error shall stay or delay the execution of judgment or sentence in a criminal case, except in capital cases. R.S. 1919, sec. 4038. Omar Burr Snow being incarcerated under sentence for life, his estate must be administered — as though he were naturally dead. (4) Sheriff's deed to Wamsley, being void, may be attacked in this proceeding collaterally. Williams v. Shackelford, 97 Mo. 322. Even judgments which are void may be attacked collaterally. Merimac Springs Park Co. v. Gibson, 268 Mo. 394; Wells v. Wells, 179 Mo. 57.

R.H. Musser and Frank L. Pulley for respondent.

(1) Omar Burr Snow defended the civil action, judgment was rendered against him and from this there was no appeal taken — this judgment sustained the attachment and awarded special execution against the lands attached and these were sold to satisfy it. Snow appealed from the sentence against him rendered the same day, following the civil judgment, and the effect of this appeal was to hold in abeyance enforcement, and legal consequences of his conviction until the court of last resort either affirmed or reversed and pending that, he was held by law a prisoner awaiting this conclusion. Being successful in that appeal, that sentence became and was void and no legal penalty, rights or forfeitures accompanied it, so that he never became a convict within the meaning of Chap. 92, Art. 2, R.S. 1929, and no right to appoint a trustee for him accurued nor could one have lawfully acted in distributing his estate, if any. He became a "Convict" under the law, some 18 months later in September, 1922 (long after the sale under execution to respondent), by the judgment of the Circuit Court of Livingston County. Missouri, 13 C.J. 912; 16 C.J. 1373; 17 C.J. 372; State v. Jones, 22 S.W. 404; State v. Brannon, 72 S.W. 185; State v. Shelton, 284 S.W. 437; State ex rel. v. Cox. 243 S.W. 146; Baker v. M.W.A., 140 Mo. App. 632; Scott v. Express Co., 233 S.W. 492; State v. Bowles, 150 S.W. 626; Ward v. Morton, 242 S.W. 968; Martin v. Long, 115 S.E. 791. (2) Snow having deeded whatever title that may have been his, if any, after the attachment and prior to the judgment, is in no position to complain as to a trustee not having been appointed for his estate — in particular to the lands in controversy — having no title, his trustee would not have succeeded to a title to this real estate — and the appellant became seized only of such title as Snow was able to convey to her — and the quitclaim deed to Mrs. Repine, conveyed no right to her to collaterally attack the judgment of the Circuit Court of Clinton County in the case of Wamsley, Admr. v. Snow, which she, by this proceeding is attempting to do. 34 C.J. 520. It is clearly the law in this State, that this cannot be done. Skillman v. Clardy, 256 Mo. 297; Abernathy v. Mo. Pacific, 287 Mo. 30, 228 S.W. 486; Fitzgerald v. DeSoto Road Dist., 195 S.W. 697; Hess v. Grain Elevator Co., 280 Mo. 185; Smith v. Black, 231 Mo. 692; State v. Bank, 279 Mo. 236; Lewis v. Combs, 60 Mo. 44; State ex rel. v. Riley, 219 Mo. 684.

WESTHUES, C.

This is a suit in partition. The subject-matter of dispute is a 1/11 undivided interest in certain real estate situated in Daviess County, Missouri. Plaintiff, respondent, claimed title by virtue of a sheriff's deed executed in pursuance of an execution sale to enforce the payment of a judgment against Omar Burr Snow. Defendant, appellant, Nettie N. Repine claimed title to the 1/11 interest in dispute by virtue of a quitclaim deed executed by Omar Burr Snow.

In order to understand the case a detailed statement of the facts will be necessary. Omar Burr Snow owned the title to the land in dispute in October, 1920, and while he was the owner he killed one Dick Wamsley. On November 15, 1920, the administrator appointed for Wamsley's estate filed an attachment suit in the Circuit Court of Clinton County and a writ of attachment was directed to the Sheriff of Daviess County, Missouri. On November 16, 1920, the sheriff levied upon and attached the 1/11 interest of Omar Burr Snow, which is the subject of controversy in this suit. On January 21, 1921, judgment was rendered in favor of the administrator and against Omar Burr Snow in the sum of $2,000 and the attachment was sustained. May 28, 1921, a special alias execution was issued, and the interest here in dispute was sold on October 26, 1921. Plaintiff purchased and was given a deed at this sale. A previous execution had been issued to the Sheriff of Clinton County, Missouri, and returned only partially satisfied. Appellant, defendant Nettie N. Repine, a sister of Omar Burr Snow, received a deed from Snow dated November 16, 1920, acknowledged November 20, 1920, and recorded on December 1, 1920.

On January 12, 1921, Omar Burr Snow was convicted of murder in the first degree, and on January 22, 1921, was sentenced to life imprisonment. Snow was confined in the penitentiary from January 23, 1921, until the 18th day of March, 1922, when the Supreme Court of Missouri reversed and remanded the case for a new trial. [See 238 S.W. 1069.] Snow was not granted a supersedeas pending his appeal to the Supreme Court. Subsequently Snow was convicted of murder in the second degree and sentenced to the penitentiary for a term of fifty years. This fact, however, is immaterial in this case.

The validity of the deed under which appellant, Repine, claimed her title is not disputed. Neither is the validity of the judgment for $2,000 or the sustaining of the attachment questioned. The sole question is the validity of the sheriff's deed conveying the interest in the land to plaintiff, respondent here.

[1] It is appellant's contention that while Omar Burr Snow was serving a life term in the penitentiary he was civilly dead and, therefore, the special execution and sale were void. Appellant cites Sections 2295 and 1770, Revised Statutes 1919, now Sections 12972 and 1319, Revised Statutes 1929. Section 12972 provides as follows:

"Whenever any person shall be imprisoned in the penitentiary under a sentence of imprisonment for life, his estate, property and effects shall be administered and disposed of, in all respects, as if he were naturally dead."

Section 1319 reads:

"After the death of any defendant, no court or judge shall order, as above directed, the sale of any property or effects attached as belonging to such decedent, but the same shall be sold and the proceeds thereof appropriated in the manner provided by law respecting administrators and executors."

Plaintiff, respondent, contends that, pending the appeal of Snow to the Supreme Court, the judgment of conviction was kept in abeyance and when the case was reversed and remanded it nullified the judgment of conviction and, therefore, the above statutes did not apply.

We cannot agree to this contention. The purpose of the statute is to protect the property rights of a convict while he is incarcerated in the penitentiary. The fact that while defendant was in the penitentiary an appeal was pending from the conviction and sentence, did not change the situation. He would have been just as helpless to defend his rights in a civil case as if no appeal had been taken. In McLaughlin v. McLaughlin, 228 Mo. l.c. 652, 129 S.W. 21, this court said:

"To our mind the enactment of article 2, chapter 141, had no other purpose than that of protecting the estate of a convict. It is a step in advance of the common law. Under the common law he could be made a party defendant, but he was shorn of the power to make a real defense. Civilly dead, he could not contract as to his defense. Incarcerated, he could not defend in person. Every means of a real defense was taken from him, and the Legislature had some purpose when it passed these laws as to the preservation of his estate. To our mind that purpose was to compel the appointment of a trustee whenever it was desired to attack his estate, either for the payment of debts or for the support and maintenance of his wife and children."

We, therefore, hold that while defendant was confined in the penitentiary he was entitled to the protection of the provisions of the statute above quoted.

[2] The next question to consider is, did Snow have any rights in the property here in question? We think not. Prior to the time Snow was sentenced to the penitentiary there was a valid judgment rendered against him in favor of the administrator of the estate of Wamsley. The attachment was sustained and the judgment decreed to be a special lien against the real estate in question. Snow, prior to his conviction, had deeded all his title in the property to appellant, Repine. The title, conveyed by the deed of Snow, was subject to the attachment lien. A trustee or administrator, appointed under the...