Whittelsey v. Brohammer
| Decision Date | 31 October 1860 |
| Parties | WHITTELSEY, Appellant, v. BROHAMMER et al., Respondents. |
| Court | Missouri Supreme Court |
1. Quere, whether an action in the nature of an action of debt can be maintained against an heir on the bond of his ancestor.
2. Where the judgment rendered against the heir in such case is a general judgment, it can bind only from the time of the rendition thereof; it will not operate by way of relation so as to affect sales of lands descended to the heir from such ancestor made in good faith before the rendition of such judgment.
Appeal from St. Louis Land Court.
This was an action brought to recover possession of a lot of ground in the city of St. Louis. The petition sets forth substantially that Valentine Finck, formerly of St. Louis county, died seized of the premises described in the petition, leaving his widow, Johanna Finck, now wife of defendant Philip Mueller, his only heir, upon whom said estate descended; that said B. Finck, with other persons, executed to the State of Missouri, in the penal sum of thirteen thousand dollars, as security for Jacob Mueller as administrator of the estate of Catherine Mueller, deceased; that, there having been a breach of the condition in said bond, after the decease of Valentine Finck suit was brought upon the same in the St. Louis court of common pleas, in the name of the State of Missouri, to the use of Adolph Kehr, administrator de bonis non of said Catherine Mueller, against said Johanna Finck as heir of said Valentine; that said Johanna appeared and defended the suit and admitted that the lot described in the petition descended to her as assets of said Valentine, and that on the 6th of January, 1857, judgment was rendered in said suit in favor of the plaintiff therein against said Johanna Finck as heir of said Valentine Finck, deceased, in the sum of thirteen thousand dollars, upon which judgment execution issued according to law, by virtue of which, for want of sufficient goods and chattels of said Valentine Finck, the said real estate was levied upon by the sheriff, and on March 9, 1857, was sold to the plaintiff in this suit; that the sheriff made to him a deed for said land as the real estate of said Valentine at the time of his death, which deed passed to plaintiff all the right, title and interest in said land which Valentine Finck had at the time of his death; that, during the pendency of said suit, Johanna Finck conveyed said property to Joseph Brohammer, who subsequently conveyed it to Lorenz Brohammer, who holds it in trust for Johanna, wife of Anthony Luis and daughter of Johanna Finck; that said deeds were made upon a merely nominal consideration and with the express intent of defrauding the plaintiff in said suit, and that no consideration was actually paid for said deeds. Plaintiff prayed for a decree setting aside said deeds and for possession.
The defendants admit in their answer that the said premises descended to Johanna Finck as stated; admit the execution of the bond and the suit thereon, but deny that said suit and proceedings therein are correctly stated by plaintiff; admit that Johanna is the wife of the defendant Mueller, and state that she married him during the pendency of the suit on the bond in the common pleas court and before the rendition of the judgment; that the execution and sale by the sheriff were irregular and void, were nullities, and that plaintiff acquired no right or interest whatever, under the same, in said premises; admit the execution of the two deeds mentioned in the petition, but deny that they were made with any fraudulent intent, and insist that they are valid and operative against the plaintiff in this suit.
In the suit in the common pleas court on the bond of Mueller judgment was rendered in behalf of the plaintiff Kehr, against the defendants Bidlingmaier, Reinhart and Johanna Finck for the penalty of the bond--$13,000. This was a judgment by default as to Reinhart and Johanna Finck. Its date was January 6, 1857. The damages were assessed at $8,194.91. In the entry of judgment nothing is said as to the judgment being against Johanna as heir of Valentine Finck; it is in the common form. The execution issued under this judgment recited a judgment against Bidlingmaier, Reinhart “and Johanna Finck, heir of Valentine Finck,” and commands the sheriff to make the amount “of the goods and chattels and real estate of the said Leonard Bidlingmaier, Jacob Reinhart, and which were of said Valentine Finck at the time of his death.” The sheriff's deed conveying the real estate in controversy to plaintiff contains the statement-- interlined before execution in the handwriting of plaintiff in the present suit, who was attorney for the plaintiff in the suit in the common pleas--that “for want of sufficient goods and chattels whereon to levy” he did levy upon and seize said real estate, describing it as the real estate of said Valentine. The property was sold by the sheriff to the plaintiff for two hundred and eleven dollars. The value of the property at the time of the purchase by plaintiff was not less than nine thousand dollars.
The cause was submitted to the court upon the pleadings and exhibits referred to therein and certain agreed statements of facts. The substance of these is stated above. The court refused all the instructions asked on both sides. The following are those prayed by the plaintiff:
The court decided upon the whole evidence that the plaintiff was not entitled to recover, holding that the execution and sheriff's sale and deed passed no title to the plaintiff, as the execution did not follow the judgment.
Whittelsey, for appellant.
I. The court erred in declaring that the sheriff's sale passed no interest in the land sued for on account of the variance between the judgment and the execution. At common law, where the heir pleaded riens per descent, and the issue was found against him, or upon a judgment by default, the judgment against the heir was general, and so was the execution. (R. C. 1855, p. 736, § 4.) Johanna Finck was sued on account of assets real descended. The personal assets would have passed to heirs out of the United States. There was no error therefore in the writ in its direction to the sheriff to make the debt out of the real estate descended. .) The error or defect complained of could not be taken advantage of in this collateral action. The error in the writ could have been amended. The party might have applied to the court to set aside the sale and order a new writ. The writ was not void, if even voidable. The rule should be uniform that the sale is valid in all collateral cases unless the proceedings be absolutely void for want of power in the court or officers. If the power exists, the sale should be valid, no matter how defective the process. The defendants in this suit, who held by conveyances fraudulently made, could not object to the variance between the judgment and execution. The fact that the purchaser at the sheriff's sale was the attorney in the original suit will not affect the validity of the sale, unless it appear that he was guilty of some act in pais that made the purchase fraudulent as to the judgment debtor. (See 27 Mo. 428; 4 Mich. 205; 11 Johns. 464; 18 Mo. 29; 17 Mo. 71; 2 Strob. 207; 2 Cart. 309.) The actual value of the land sold, with the possession and title undisputed, compared with the amount bid, can have nothing to do with the question in the collateral issue. (23 Mo. 579.) The court erred in refusing to declare, as prayed, that the deeds from Johanna Finck to J. Brohammer and from the latter to Lorenz Brohammer, were made without valuable consideration and were fraudulent as against the plaintiff. It was expressly charged that said deeds were made without valuable consideration and with intent to defraud the plaintiff in the original suit. The facts were not denied, but the intent was. This was not sufficient. (R. C. 1855, p. 1232, § 12, p. 1238, § 48.) If fraudulent, the plaintiff was entitled to the relief prayed, provided the sheriff's deed passed the title. The court erred in refusing upon the pleadings and evidence to give judgment for the plaintiff. The deed from Johanna Finck having been made after suit brought and without consideration, the land conveyed was still liable to the execution of the judgment. .)...
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