Winningham v. Trueblood

• Decision Date: 23 May 1899
• Citation: 51 S.W. 399,149 Mo. 572
• Parties: WINNINGHAM v. TRUEBLOOD.
• Court: Missouri Supreme Court

51 S.W. 399

149 Mo. 572

WINNINGHAM v. TRUEBLOOD.

Supreme Court of Missouri, Division No. 2.

May 23, 1899.

EJECTMENT — TITLE — CONTRACT — ACTION — RESCISSION — ATTACHMENT — JUDGMENT — JURISDICTION — SERVICE — LIEN — RETURN — FILING ABSTRACT — ORDER OF PUBLICATION.

1. In ejectment the validity of attachment proceedings by which the defendant in ejectment came into possession of the land may be considered.

2. Upon failure of one to keep his part of an agreement to execute a note and mortgage for money loaned to him, a cause of action arises in favor of the lender upon the receipt of the money by the borrower, and no notice of rescission of the contract is necessary.

3. A judgment cannot be collaterally attacked for want of jurisdiction because the petition does not state a cause of action, since, if it states a case belonging to a general class over which the authority of the court extends, jurisdiction is conferred.

4. Rev. St. 1889, § 543, requiring the writ and petition in attachment to be served upon the defendant as an ordinary summons, is sufficiently complied with by service of the petition and an ordinary summons four days after the levy of the writ; the defendant appearing in the action, making no objection, obtaining a change of venue, and filing an answer.

5. The lien of an attachment dates from the filing of the abstract of attachment in the recorder's office.

6. A sheriff's return of a writ of attachment is sufficient, though it fails to state that the levy was made to satisfy "any debt or damages and costs," since Rev. St. 1889, § 543, requires only that the sheriff shall attach a sufficient amount of land, "to satisfy," etc.

7. The abstract of attachment required by Rev. St. 1889, § 543, to be filed in the recorder's office, is sufficient notice, if filed on the date of the levy, though not recorded on that day.

8. An order of publication, in a suit to set aside a deed, which misdescribes the land, is fatally defective.

9. Defendant in an attachment suit, upon whom notice is served only by publication, which notice is fatally defective by reason of a misdescription of the land in suit, may attack the judgment in a subsequent ejectment suit.

10. An order of publication in an attachment suit reciting, "And it appearing to the satisfaction of the court that the defendant is a non-resident of the state of Missouri, and cannot be summoned in this action," etc., is a sufficient compliance with Rev. St. 1889, §§ 2022, 2024, inasmuch as it must be read in connection with the return of the sheriff, reciting, "W. not found in my county," and also as the words referring to nonresidency may be rejected as surplusage.

Appeal from circuit court, Laclede county; C. C. Bland, Judge.

Ejectment by J. R. Winningham against B. F. Trueblood. From a judgment for defendant, plaintiff appeals. Reversed.

L. O. Neider, for appellant. F. M. Mansfield, for respondent.

SHERWOOD, J.

Change of venue to Laclede county of an action of ejectment for the E. ½ of the N. W. ¼ and the W. ½ of the N. E. ¼ of section 8, township 30, range 13, situate in Wright county. Defendant entered a general denial, and also set up matter authorizing equitable relief, which was prayed. The reply tendered the general issue. The plaintiff's abstract of record discloses, in substance, this state of facts: That the plaintiff, John R. Winningham, and C. C. Winningham are brothers. That in the year 1890 C. C. Winningham, after obtaining a loan of $900 on a farm in Wright county from a loan company, transferred all his property to his son, James O. Winningham, and went to the state of Oregon. While there he arranged with one F. McClain, his brother-in-law, to borrow $1,000 to aid him in the purchase of a farm; agreeing to secure the payment by mortgage on the farm to be purchased. That after he returned to Missouri he represented to Mr. McClain, by letters, that he had contracted for a farm in Wright county for $2,400; that he did not want to go in debt, but desired to pay cash; that he had $1,400, which he would pay the seller the next day, and wanted to borrow $1,000 to complete the payment, and would give him a note secured by mortgage on the farm. That, upon receipt of this letter, McClain forwarded to C. C. Winningham a draft for $1,000 on the National Park Bank of New York, together with a note, to be signed, and secured by mortgage on the farm purchased, and to be returned to McClain. That on the 28th day of March, 1891, C. C. Winningham purchased of one J. W. Perry the land in controversy, and paid for the same with the money borrowed from McClain, and caused the deed therefor to be made to and in the name of his son, James O. Winningham, and refused to execute and deliver to the said McClain a note and mortgage to secure the payment of the said sum of $1,000, as he had agreed to do. That, upon the receipt of the draft for $1,000 from the said McClain, C. C. Winningham suddenly lost all interest in his "dear brother and sister," and from that time he stopped all correspondence with them, and did not so much as acknowledge the receipt of the money or draft. That in September, 1891, C. C. Winningham caused the arrest of his son, James O. Winningham, on a charge of embezzlement. That on or about the 26th day of September, 1891, the trouble between him and his son was adjusted, and the land conveyed to C. C. Winningham. That on the 20th day of January, 1892, the said McClain commenced suit in the Wright county circuit court by attachment against C. C. Winningham to recover the said sum of $1,000. The affidavit for the writ was based in part on the fraudulent contracting of the debt. That a writ of attachment was issued, and was by the sheriff on the 21st day of January, 1892, levied upon the lands in question, and abstract of such levy filed with the recorder of deeds. That at the March term, 1892, of the Wright county circuit court, C. C. Winningham appeared and filed his answer thereto, and also filed his application and affidavit for a change of venue. That a change of venue in said cause was granted to the circuit court of Polk county. That at the April term, 1892, of the Polk county circuit court, upon a trial, judgment was duly rendered in said cause against C. C. Winningham for $1,093.38. That between the dates of granting the change of venue in the Wright county circuit court and the rendition of the judgment in the Polk county circuit court, to wit, on the 31st day of March, 1892, C. C. Winningham executed a deed to his brother, the plaintiff, John R. Winningham, and filed the same with the recorder of deeds of Wright county for record, and paid the recorder the fee for recording the same. That the deed was left with the recorder subject to the orders of the grantor, C. C. Winningham. That on the 7th day of June, 1892, a general execution was issued on the judgment rendered in the Polk county circuit court, directed to the sheriff of Wright county, which execution was by the sheriff of Wright county on the 21st day of July, 1892, duly levied on the lands in controversy. That at the August term, 1892, of the Wright county circuit court, the land was, by virtue of said execution, sold to satisfy said judgment and execution, and at such sale the said McClain became the purchaser thereof, and the sheriff executed and delivered to him a deed in due form conveying to him the said land. That the said McClain afterwards commenced his action in the Wright county circuit court against the plaintiff, John R. Winningham, and C. C. Winningham, for the purpose of having the deed made by C. C. Winningham to John R. Winningham set aside, and to recover possession of said land. That at the September term, 1893, of the Wright county circuit court, upon a trial of said cause, judgment was duly rendered in favor of the said McClain against C. C. and John R. Winningham, declaring and adjudging the deed made by C. C. Winningham to John R. Winningham on the 31st day of March, 1892, fraudulent and void as against the deed made by the sheriff of Wright county conveying to the said McClain the said land, and for possession of same. That a writ of restitution was issued on said judgment, and the said McClain, by virtue of said writ of restitution, put in the possession of said land. That on the 5th day of June, 1894, the said F. McClain, by general warranty deed, conveyed the lands in question to the defendant, B. F. Trueblood. That the plaintiff, John R. Winningham, commenced in the circuit court of Wright county this action in ejectment to recover possession of said lands, and on his application a change of venue was awarded to the circuit court of Laclede county. That on a trial of said cause in the latter court the judgment was adverse to the plaintiff, from which judgment plaintiff appeals to this court.

1. The action of ejectment herein, and the equitable defense set forth in the answer, bring in question the validity of the precedent steps which brought about the present suit, and resulted in the judgment from which plaintiff appeals. It is asserted that it appears on the face of the answer to this action that the former action of attachment brought by McClain against C. C. Winningham was prematurely brought, as it had not, at the time the suit was brought, ripened into a cause of action which McClain could enforce in an action at law, inasmuch as "the petition [sic] states an executory contract to convey real estate in Wright county, Mo., and, before McClain could bring suit against Winningham, he must terminate such contract by first giving to him reasonable notice, in writing, that he, at a certain specified time, would terminate the contract; that is, a reasonable time, according to the circumstances of the case, within which he would expect the title to be made as contracted, at the peril of rescinding the agreement. Mastin v. Grimes, 88 Mo. 478." In other words it is gravely announced to this court that because C. C. Winningham did...