Winston v. Affalter

• Decision Date: 31 January 1872
• Parties: B. W. WINSTON, Defendant in Error, v. BERNARD AFFALTER AND WILLIAM HAYNES, Plaintiffs in Error.
• Court: Missouri Supreme Court

49 Mo. 263

B. W. WINSTON, Defendant in Error,

v.BERNARD AFFALTER AND WILLIAM HAYNES, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1872.

Error to Cole Circuit Court.

E. L. King & Bro., and Lay & Belch, for plaintiffs in error.

The sheriff's second deed to plaintiff was inoperative, being made after the institution of this suit. (11 Mo. 481; Tyler Eject. 75; 25 Ill. 537.) After the first deed the sheriff lost all power over the property, and nothing passed by the second. The sale under G. B. Winston's judgment--if there ever was one, which we deny--merely passed the latter's equity; and B. W. Winston, holding under him, could not sue in ejectment without first getting a decree in equity vesting in him the legal title. (21 Mo. 364; 33 Mo. 219; 24 How. 398; Wagn. Stat. 557, § 1; Tyler Eject. 62-3.) King's notice, if any, was merely notice of plaintiff's equity, which cannot avail him here. Ejectment can only be maintained upon a legal title and the right of possession. (33 Mo. 219; 19 Mo. 425; 1 Iowa, 153; 13 Ohio, 260; 25 Ill. 537; 25 Verm. 564; 13 Wis. 472; 1 Houston, 178; 9 Iowa, 112; 13 Iowa, 453, 604.) A mere title bond does not give the right of possession. (7 Cow. 229; 9 Johns. 35; see also 19 Mo. 425; 13 Ala. 50.) Plaintiff in ejectment must rest on his title at the commencement of his suit. (25 Ill. 537; see also 26 Mo. 364.)

Ewing & Smith, for defendant in error.

I. The judgment of G. B. Winston against Jordan cannot be attacked collaterally for an irregularity. (Wales v. Bogue, 31 Ill. 464; Bonsall v. Isett, 14 Iowa, 309.) The judgment was conclusive between the parties to this suit.

II. It was no objection to the sheriff's second deed that he had already made a defective one. And the former, by relation, dated back to time of the purchase under the execution. The making of this deed in no way disturbed any rights of the defendants. (Alexander v. Betts, 9 Mo. 514; Hartt v. Rector & Dobbin, 13 Mo. 497; Crowley v. Wallace, 12 Mo. 143.)

III. At the time King purchased this land under execution against G. B. Winston, the said Winston had no vendible interest therein. He had by his voluntary acts parted with his title. Certainly King could acquire no title unless he could show that he was an innocent purchaser without notice of plaintiff's title. But he had notice; hence the registration law will not avail him. (Ownsby v. Davis, 14 Mo. 170; Burke v. Seely, 46 Mo. 334.) Neither King nor those claiming under him with notice acquired anything by his purchase.

IV. Plaintiff had prior possession. This was sufficient to maintain ejectment against King's grantees with notice. (33 Mo. 172; 15 La. Ann. 76.) G. B. Winston, and those claiming under him with notice of the facts, would be estopped from denying the title of said B. W. Winston. This is a title by estoppel. (Tyler Eject. 74, 543; Stoddard v. Chambers, 2 How. 284; Garrett v. Lyle, 27 Ala. 586; Clark v. Diggs, 6 Ired. 159; Luter v. Rose, 20 Texas, 639; Snodgrass v. Ricketts, 13 Cal. 359; Taylor v. Zepp, 14 Mo. 482; Dezell v. Odell, 3 Hill, 215.)

V. The plaintiff could not be affected by any omissions of the sheriff to make the proper publication of the notice of sale, unless the plaintiff participated in the occasioning such neglect of the sheriff for a fraudulent purpose, and that is not pretended. (Draper v. Bryson, 17 Mo. 71; Hendrickson, Adm'x, v. St. Louis & I. M. R.R., 34 Mo. 188; Lawrence v. Speed, 2 Bibb, 401; Webber v. Cox, 6 Monr. 110.)

ADAMS, Judge, delivered the opinion of the court.

This is ejectment for lands in Cole county. The plaintiff relied on the following title: 1. A patent from the United States to George B. Winston for the lands in dispute, bearing date 15th January, 1856. 2. George B. Winston, by title bond, sold the lands to George W. Jordan in 1858; and the purchase-money or a part of it remaining unpaid, George B. Winston brought suit in the Cole Circuit Court, in 1863, against said Jordan for the balance of the purchase-money and for foreclosure of his vendor's lien; and a final judgment was rendered therein in January, 1864, and an order in said judgment that the lands in controversy be sold on execution to pay the amount of the judgment and costs. Afterward, on the 11th of May, 1866, an execution was issued on this judgment, and the lands in dispute levied on and sold under the same at the June term of the Cole Circuit Court, 1866, and the plaintiff became the purchaser, and took a deed from the sheriff; but the deed by mistake did not contain these lands, and therefore was excluded on the trial. Afterward, in 1870, the sheriff made a regular deed reciting the judgment, execution, etc., and acknowledged the same in open court, which acknowledgment was indorsed on the deed. This deed is dated a short time after the commencement of this suit, and was read in evidence against the objections of the defendants. The defendants also objected that notice of the sheriff's sale had not been published in a German newspaper as well as an American one, but the objections were overruled. The defendants then, to maintain their defense, read in evidence a sheriff's deed to E. L. King, reciting a judgment of February 12, 1869, in favor of William Chambers, for $1,675 for debt and damages against George B. Winston, and an execution of date June 19, 1869, and a levy of same on land in dispute, advertisement, etc., and sale on the 6th day of August, 1869, at which E. L. King became the purchaser, etc. This deed was executed by the sheriff on the 9th of August, 1869, and on the same day duly acknowledged in open court, and a certificate of such acknowledgment indorsed on the deed. The defendants then read the deed from King to them for the land he had bought at execution sale as above recited. Evidence was introduced conducing to show that King took possession of the premises under his sheriff's deed before he sold to defendants and delivered possession to them.

The plaintiffs then, by way of rebutter, introduced evidence conducing to show that at and before the time King bought at execution sale he had actual notice of plaintiffs' title, and that defendants, before they bought of King, in like manner had such notice. There was some conflicting testimony in regard to notice to these parties.

After the evidence was closed each party asked numerous instructions, some of which were given and others refused. Under the view we have taken of this case it is unnecessary to recite the instructions...