Weil v. Richardson

• Decision Date: 06 January 1930
• Citation: 24 S.W.2d 175,224 Mo.App. 990
• Parties: JACOB WEIL ET AL., RESPONDENTS, v. FRED A. RICHARDSON, SHERIFF ET AL., APPELLANTS
• Court: Kansas Court of Appeals

24 S.W.2d 175

224 Mo.App. 990

JACOB WEIL ET AL., RESPONDENTS, v. FRED A. RICHARDSON, SHERIFF ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

January 6, 1930

Appeal from Circuit Court of Jackson County.--Hon. Thomas B Buckner, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Ringolsky Friedman, Boatwright & Jacobs for respondents.

Frank G. Warren and John C. Nipp for appellants.

BOYER C. Barnett, C., concurs. Trimble, P. J., absent.

OPINION

BOYER, C.

This is an action under section 1969, Revised Statutes 1919, for injunctive relief against a pending execution sale of real estate. Judgment for plaintiffs and defendants appeal. When the case was originally heard here it was the opinion of the court that title was involved, in view of the issues made by the pleadings and the judgment called for upon the entire case. It was certified to the Supreme Court where in Division No. 2 it was held by the majority, accompanied by a dissenting opinion (Weil v. Richardson, 7 S.W.2d 348), that the judgment rendered did not in itself affect title to real estate, and unless title was so affected the proper appellate jurisdiction was in the Court of Appeals. The dissent was based upon the same view held by this court, that is, if the issues made by the pleadings were fully determined by a responsive judgment, title would be involved. The case was remanded to this court where an opinion was adopted in which the decree was reversed and the cause remanded; but upon motion a rehearing was granted and the case comes to the writer upon reassignment.

Plaintiffs in the suit, Weil and Strauss, who are the respondents here, filed their petition in the Circuit Court of Jackson County, seeking to restrain and permanently enjoin the sheriff of said county and his co-defendant, McIlrath, from selling on execution a parcel of real estate in Jackson county to satisfy a judgment in favor of McIlrath and against Mendelsohn Strauss Realty Company, a corporation. The amended petition, upon which the case was tried, alleges that defendant Richardson is the sheriff of Jackson county; that defendant McIlrath obtained a judgment against the corporation in the circuit court of Jackson county; that plaintiffs are the owners of the real estate in question, and each the owner of an undivided one-half interest therein; that prior to April 19, 1921, the title to the real estate was vested in the corporation, and on said date by warranty deed for a valuable consideration all of said property was conveyed to plaintiff Weil and one Kupfer and the deed duly recorded; that plaintiff Strauss became vested with the interest conveyed by said deed to Kupfer, by deed from Kupfer, duly recorded; that since said time plaintiffs have been in open, notorious and continuous possession of the property; that the sheriff has caused notice of sale to be published by virtue of a general execution issued in favor of defendant McIlrath and against the corporation; that the sheriff has levied on all right, title and interest of said corporation, and in pursuance thereof a sale was to be held February 8, 1923; that the corporation has no right, title, interest or estate in the property; that the judgment, upon which the execution was issued, was had November 17, 1922, subsequent to the date upon which the corporation divested itself of title; that the Mendelsohn-Strauss Realty Company was a corporation duly organized and existing by virtue of the laws of Missouri, and that on December 2, 1913, the charter of said corporation was duly and legally declared forfeited and was forfeited by the State of Missouri, since which said time the said corporation has ceased to exist; that prior to the judgment in favor of McIlrath the corporation had ceased to exist and the judgment is a nullity, and the execution issued thereunder and all other proceedings subsequent to the judgment were void; "that the threatened sale is made only for the purpose of casting and creating a cloud upon the right, title, interest and estate of these plaintiffs in and to the said real estate; that they are not parties in the suit instituted by the said defendant, George D. McIlrath, in which judgment was had, and that no liability of any kind or character had accrued to them by virtue of the allegations upon which the said suit is based, and said contemplated sale is in violation of section 1969, Revised Statutes 1919;" that unless restrained, the sheriff and McIlrath will sell the property, and that irreparable damage will be done to the interest and title of the plaintiffs, and that same will cast a cloud upon their title, and that they have no complete and adequate remedy at law. The prayer was that the defendants be restrained and enjoined until a hearing, and for a permanent and perpetual injunction restraining them or anyone acting under and thru them from selling the real estate or any interest therein under the judgment in favor of McIlrath, "and that the said judgment heretofore rendered in favor of defendant, George D. McIlrath, be declared a nullity and void, and that the same be set aside and for naught held."

The amended petition was filed May 1, 1923, but prior thereto plaintiffs had filed their original petition February 8, 1923, the day upon which the sale was set, which said petition was in effect the same as the amended petition except the allegations in reference to the forfeiture of the charter of the corporation and the invalidity of the McIlrath judgment. A temporary restraining order was issued at that time returnable February 23, 1923, at which times the application for a temporary injunction was heard and an order made by which defendants were temporarily enjoined and restrained from doing any act or thing under said execution.

April 3, 1923, the defendants filed their separate answers. That of the sheriff is a plea of justification in pursuance to a general execution, and the direction of his co-defendant to make the levy and advertisement. The answer of defendant McIlrath admits that he obtained a judgment against the corporation November 17, 1923, and that same is wholly unsatisfied; that prior to April 19, 1921, title to the real estate was vested in the corporation; admits the purported deeds from the corporation to Weil and Kupfer, and from Kupfer to Strauss were recorded; that Richardson, the sheriff, caused notice of sale to be published by virtue of the execution in favor of McIlrath and against the corporation; that the sheriff had levied on the right, title and interest of the corporation in said property and that the sale was set for February 8, 1923. The answer further contained a general denial, and further stated that prior to April 19, 1921, the corporation was indebted to him upon a cause of action sued on and tried November 17, 1922, which resulted in a judgment in his favor; that it is the same judgment upon which execution was issued; denies that the deed purporting to convey the real estate from the corporation to Weil and Kupfer was a valid conveyance, and states that said deed was without sufficient or valuable consideration to the corporation, and was made for the purpose of hindering, delaying and defrauding him and to prevent him from collecting his debt; that the purported deed was not in fact the deed of the corporation, and was not executed by any authority of the board of directors of said corporation; that the corporation was organized for the purpose of owning, operating and developing the real estate referred to; that said property was all of the property which the corporation at any time owned and that on said 19th day of April, 1921, said corporation had no property or assets of any kind except said real estate; that on said date the plaintiffs, Weil and Strauss, were owners of all of the capital stock of said corporation except one share held by Kupfer; that the purported deed of April 19, 1921, was secured and placed of record for the express purpose of depriving defendant of any means of collecting his deft; that Kupfer acted as agent for the plaintiffs in pursuance of said fraudulent design in the execution of the purported conveyance from the corporation to Weil and Kupfer and from Kupfer to Strauss; that the conveyance from Kupfer to Strauss was without any consideration; that the corporation now is and at all times mentioned was the true and legal owner of the real estate, and that if defendant is deprived of his right to levy upon said property and sell same, he will be deprived of all means of securing satisfaction of his judgment. He prayed for a dissolution of the temporary injunction, and that the purported deeds be declared to be fraudulent and void as against him and that the property be declared to be the property of the corporation; that defendant be permitted to sell same to satisfy the execution and for general relief.

On May 1, 1923, the plaintiffs filed their amended petition heretofore referred to, and for the first time alleged the non-existence of the corporation prior to the date of the judgment and the invalidity of the judgment. The petitions were sworn to by plaintiff Strauss, and on the same day plaintiffs filed replies to the separate answers, and to each of said answers replied that they denied all new matter therein, and further stated that the Mendelsohn-Strauss Realty Company was duly organized and existed under charter issued to it and that on December 2, 1913, said charter was duly and legally declared forfeited and was forfeited by the State, since which said time the company had ceased to legally exist as a corporation; that the judgment referred to was rendered in favor of defendant McIlrath November 17 1922; that prior thereto the corporate existence of the...