Wineland v. Coonce

Decision Date30 June 1838
Citation5 Mo. 296
PartiesFERDINAND WINELAND v. FELIX COONCE.
CourtMissouri Supreme Court

J. SPALDING, for Plaintiff in Error. 1. The transcript of the the executions and constable's return thereon, of Scott & Rule v. Molloy, was improperly admitted in evidence, inasmuch as the same should have been filed in the clerk's office in order to warrant an execution. 2. The title of defendant, under Finneys, Keyte & Mullikin, all of them bona fide purchasers for value, without notice of fraud, is good. Old Rev. Code. p. 101-2, § 3; Bac. Abr. 307-8-9; 13 Johns. R. 471; 18 do. 515; 2 Sugden on Vendors, 198; 6 Cranch, 133. 3. The judgment and execution in favor of Mullikin were against both Molloy & McCaffery, both the fraudulent grantor and fraudulent grantee, and the sale on this judgment, was eighteen months sooner than on the other judgment of Scott & Rule, and this latter judgment, not being accompanied with a copy of the execution and constable's return, was no notice to any person, as on its face it appeared altogether defective as an authority for the sheriff to sell.

H. R. GAMBLE, for Defendant in Error. 1. The deed from Molloy to McCaffery being fraudulent and void as to Scott & Rule, the title to the premises so remained in Molloy as to be subject to the lien of Scott & Rule's judgment. Rev. Laws of 1825, 484, 462, 369 2. It was not necessary, in showing title in this case in the plaintiff, that the transcript of the judgment before the justice, filed in the clerk's office, should have contained a copy of the execution issued by the justice; nor is it necessary to produce any evidence that, before the clerk issued his execution, it was proved to him that the justice had issued an execution. Rev. Code, 1825, 483, § 30; Coonce v. Monday, 3 Mo. R. 373.

MCGIRK, J.

Coonce brought an action of ejectment against Wineland for a lot of ground in the city of St. Louis, in the Circuit Court of St. Louis county. Plea, not guilty. The cause was tried by the court without a jury. A verdict and judgment were given for the plaintiff, Coonce. To reverse this judgment. the cause is brought here. It appears by the record, that sometime before the 13th of July, 1829, one Molloy was indebted to Scott & Rule, of St. Louis, and at the same time he was indebted to one Charles Mullikin; and that also, prior to said 13th July, 1829, he, Molloy, owned the lot of ground sued for; that on the 13th of July, Molloy, to defeat and defraud these creditors, made a deed of the lot to one McCaffery, who took the same with like knowledge and intent; that on the 20th July, this deed was recorded. On the 6th of August, 1829, Mullikin commenced suit before a justice. Scott & Rule commenced suit against Molloy before a justice, 25th September. Mullikin had judgment before a justice, 15th August. Scott & Rule had judgment before a justice on the 26th October; on the 28th October they filed their transcripts in the clerk's office; on the 27th of October, Scott & Rule took execution from the justice against Molloy; on the 14th of April, 1831, an execution issued against Molloy from the clerk's office on the justice's judgment; it was levied on the lot, and sold to Scott & Rule; the sheriff made them a deed 18th August, 1831, and they recorded the same 25th August, 1831; they then sold to Coonce. From the judgment of Mullikin, rendered before the justice on 15th of August, 1829, Molloy appealed to the Circuit Court, and gave McCaffery as security; on the 18th January, 1830, judgment on the appeal was given against Molloy and McCaffery in the Circuit Court; execution issued against them on the 5th of March from the Circuit Court, and was levied on the lot and sold 30th March, by the sheriff, to Mullikin; a deed was made by the sheriff to him that day, and recorded 2nd of April, 1830; then Mullikin sold to Keyte 1st April, 1830, under whom Wineland claims. With regard to the respective dates and registry of the mesne conveyances, I will take no notice, as I deem it immaterial.

It appears that the fact, that an execution had been issued by the justice and returned nulla bona, was proved by the production of a certified copy from the justice. It was insisted by the counsel that this could not be done, but that before the party can file his judgment in the clerk's office, he must wait till the justice issues an execution, and till the same is returned nulla bona; then he can take a transcript of the whole to the Circuit Court and have his lien to commence. The law says the judgment of a...

To continue reading

Request your trial
14 cases
  • Petring v. Kuhs
    • United States
    • Missouri Supreme Court
    • May 4, 1943
    ...(5) If the legal title passed, then a subsequent purchaser in good faith from a fraudulent grantee holds title against the world. Wineland v. Cooney, 5 Mo. 296; Craig v. Zimmerman, 87 Mo. 475; McDaniel Sprick, 297 Mo. 424, 249 S.W. 611; Williams v. Mackey, 61 S.W.2d 968. (6) Certain cases d......
  • Summet v. City Realty & Brokerage Co.
    • United States
    • Missouri Supreme Court
    • December 24, 1907
    ... ... failure of consideration, especially after the land conveyed ... reaches the hands of purchasers for value without notice ... Wineland v. Coonce, 5 Mo. 296; Gordon v ... Ritenour, 87 Mo. 54; Hollocher v. Hollocher, 62 ... Mo. 267. (3) Money advanced to a life tenant on a deed of ... ...
  • Fulkerson v. Sappington
    • United States
    • Missouri Supreme Court
    • March 17, 1891
    ...the payment of an honest debt of B. Sappington, and his purchase cannot equitably be disturbed. Craig v. Zimmerman, 87 Mo. 475; Wineland v. Coonce, 5 Mo. 296; Hewe Waysman, 12 Mo. 169; Dougherty v. Cooper, 77 Mo. 528; Formler v. Moore, 77 Mo. 651; Shelley v. Booth, 73 Mo. 75; Ryan v. Young,......
  • Roberts v. Moseley
    • United States
    • Missouri Supreme Court
    • April 30, 1877
    ... ... Calvert, 22 Mo. 361; Knox vs. Hunt, 18 Mo. 174; Turner vs. Turner, 44 Mo. 539; Price's Heirs vs. Evans, 26 Mo. 30; Wineland vs. Coonce, 5 Mo. 296; Howe vs. Waysman, 12 Mo. 169; Henderson vs. Dickey, 50 Mo. 161; Hill. Trust. 224; Ayers vs. Weed, 16 Conn. 291; Stacey vs ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT