Woods v. Wilson

• Decision Date: 30 July 1937
• Citation: 108 S.W.2d 12,341 Mo. 479
• Parties: Emily Woods v. Minnie Wilson and Waltine Wilson, Defendants, the First National Bank of Neosho and Paul Liles, Sheriff, Defendants and Appellants
• Court: Missouri Supreme Court

108 S.W.2d 12

341 Mo. 479

Emily Woods v. Minnie Wilson and Waltine Wilson, Defendants, the First National Bank of Neosho and Paul Liles, Sheriff, Defendants and Appellants

Supreme Court of Missouri

July 30, 1937

Appeal from Newton Circuit Court; Hon. Emory E. Smith Judge.

Affirmed.

Leo H. Johnson for appellants.

(1) A judgment is declared by statute to be a lien against the real estate of the debtor situate in the county where the judgment is rendered. Sec. 1104, R. S. 1929. "LIEN IN COURTS OF RECORD GENERALLY. Judgments and decrees rendered by any court of record shall be a lien on the real estate of the person against whom they are rendered, situate in the county for which the court is held." This section was repealed Laws 1935, page 207, and is now known as Section 1103, but as set forth above, was in effect at the times in question. (a) Judgment liens are creatures of our statutory law. Hagemann v. Pinska, 37 S.W.2d 465; 15 R. C. L., p. 794, sec. 250: "Judgment liens are the creature of statute or law and owe their life and force entirely to Legislation -- a state may regulate them as it deems proper -- and may by law expressly make a judgment a lien by its own force and effect." 34 C. J. 569, sec. 872; Williams v. Lobban, 206 Mo. 410; Slattery v. Jones, 96 Mo. 216; Eneberg v. Carter, 98 Mo. 647; Godman v. Simmons, 113 Mo. 122; Smith v. Thompson, 169 Mo. 561. (2) The statutes of Missouri, 1929, create and control judgment liens. And provide the limitation during which revival may be had. And provide the limitation during which execution may issue. Smith v. Thompson, 169 Mo. 560. In Moore v. Jordan, 42 L. R. A. 210, "It is conceded that the liens of the several judgments on after acquired lands attach eo instanti and at the moment when the title vests in the judgment debtor; also that the lien of each judgment attaches at the time it is docketed on all lands then owned by the debtor." Michael v. Boyd, 1 Ind. 259; Willis v. Downs, 46 S.W. 920; Ware v. Delehaye, 95 Iowa 667; Ware v. Purdy, 60 N.W. 526; Kisterson v. Tate, 94 Iowa 665.

Ruark & Ruark for respondent.

(1) In order to narrow the issues the respondent will concede: (a) The lien of a judgment extends for three years from date of rendition. (b) That this lien may be revived and continued for periods of three years at a time; said extension to date from judgment of revivor. (c) That the levy of an execution of itself creates a lien on the property so seized (in this case the notice of levy), and such lien continues until such writ be executed, or is returned, or dies by operation of statute or act of the parties. (d) That the levy of the Execution No. 1 created a lien superior to respondent's deed; and had sale been held under such execution, such sale would be superior to respondent's title. (2) As to appellant's contention that the three-year lien does not commence to run (on after-acquired property), until such property is acquired: The statute which gives birth to the lien also fixes its length of life: "The lien of a judgment or decree shall extend as well to the real estate acquired after the rendition, as to that which was owned when the judgment or decree was rendered. Such liens shall commence on the day of the rendition of the judgment, and shall continue for three years, subject to be revived as hereinafter provided. . . ." Sec. 1105, R. S. 1929. Such lien is only a creature of statute and cannot be extended beyond the lease of life given it by the statute. Hill v. Arnold, 177 S.W. 346. And such lien, being a creature of statute, and having commenced at the date of rendition of judgment, dies three years from that date. Crittenden v. Leitemsdorfer, 35 Mo. 243; King v. Hayes, 9 S.W.2d 540; Hageman v. Pinska, 37 S.W.2d 463; Huff v. Morton, 94 S.W.2d 463; Kelly v. Parman, 51 S.W.2d 231. This is true even though such lien may have been impossible of enforcement during the three years it lived. Green v. Daugherty, 25 Mo.App. 217; Christy v. Flannigan, 87 Mo. 670; Submette v. Railroad Co., 96 Mo.App. 113; Smith v. Thompson, 169 Mo. 553. Evidently the Legislature meant this to be the law, for in addition to the plain and indisputable language of Section 1105, it provided that the lien could be revived by scire facias, but that if revived after the lien had expired (as in this case) the judgment of revivor would take effect only from date of rendition thereof, "And shall not prevail over intermediate incumbrances." Sec. 1107, R. S. 1929. And respondent is supported by many decisions in such interpretation. Pullis v. Pullis, 157 Mo. 565; Bank v. Rorher, 138 Mo. 370; Hope v. Blair, 105 Mo. 85. This execution was issued on August 6, 1932. The Circuit Court of Newton County held terms in October, 1932, and in February, June and October of each year thereafter, and until October, 1934. No proof is to the contrary. Sec. 2027, R. S. 1929. Therefore said execution, and its appendage, the lien, would have died by operation of law at the end of the second term thereafter. Lackey v. Lubke, 36 Mo. 115; Karnes v. Alexander, 92 Mo. 409; City of Aurora v. Lonsday, 146 Mo. 672; Wayland v. Kansas City, 12 S.W.2d 441; Huff v. Morton, 94 Mo. 409. This is well illustrated in Lackey v. Lubke, ib., where: l. c. 121, execution issued June 12, 1854, returnable August, 1854, l. c. 123, it passed terms of August, 1854, and October, 1854, l. c. 121, the land was sold in November, 1854. And such decision is cited with approval in later cases. Butler v. Imhoff, 238 Mo. 591; Ammerman v. Liton, 279 Mo. 450.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

The purpose of this suit was to correct a description in a deed and to determine title. The court found that plaintiff was the fee simple owner of the land in question and decreed the correction of the description. Two of the defendants, First National Bank of Neosho and Sheriff Paul Liles appealed.

Plaintiff alleged that she acquired title by purchase from defendants, Minnie Wilson and Waltine Wilson, husband of Minnie, to the south half of the NE1/4 of the NE1/4, Section 11, Township 24, Range 33, Newton County, Missouri; that on August 23, 1932, the Wilsons executed and delivered to her a quitclaim deed for the purpose of conveying said land to her; that by this deed the grantors intended to convey the above-described land; but that by mutual mistake of all the parties, including the scrivener, the land was described in the deed as the east half of the NE1/4 of the NE1/4 of said section. It is further alleged that defendant, First National Bank (hereinafter called the bank) claimed the land by virtue of an execution sale under a judgment of March 3, 1927, in favor of the bank and against the grantors in the deed. Plaintiff asked reformation as to description and also asked that the title be determined.

Defendants, Minnie and Waltine Wilson, filed answer admitting the error in description, and asked reformation. The bank in a separate answer denied generally, except as to its corporate status. Further answering, the bank alleged that it was the owner in fee of the south half of said NE1/4 of the NE1/4 under sheriff's deed dated December 3, 1934 (petition in present case was filed on that date); that the sheriff's deed was the result of an execution sale under a judgment bearing date of March 3, 1927, in favor of the bank and against the grantors in the quitclaim deed to plaintiff; that George Woods, father of Minnie Wilson, owned the land in question on the date of the judgment, and that Minnie had no interest in the land until July 7, 1932 (date of the father's death), and that upon the death of the father, the land became Minnie's under her father's will, subject to the life estate of the widow, who died June 10, 1934.

The bank further alleged that on August 6, 1932, and subsequent to the death of George Woods, execution was issued on its judgment against Minnie Wilson and her husband and that the land in question was levied upon and notice of levy filed in the office of the recorder of deeds; that at the October Term, 1932, of the circuit court the execution defendants, Minnie and Waltine Wilson, appeared and filed a motion to quash the execution, and that as a result of this motion the sale under the execution was "called off" and the motion to quash was continued by agreement to the next regular term; that thereafter, said motion was continued from term to term until the October Term, 1934, at which time (October 12, 1934) the motion was overruled and an alias execution was issued; that under the alias and on same day of its issue, Sheriff Liles levied upon the land in question and filed notice of levy with the recorder.

Defendant bank further alleged that the quitclaim deed from defendants, Minnie Wilson and her husband, to plaintiff, was antedated "in an effort to convey" land in question prior to the filing of a petition by the bank "to renew" its judgment against the grantors in the deed. (The petition to revive was filed September 7, 1932; scire facias was issued same day, and judgment revived October 10, 1932.) And the bank alleged that the deed was voluntary and for the purpose of defrauding creditors, and especially defendant bank. The bank asked that the quitclaim deed be canceled, and that title to the land in question be determined. Defendant Liles, the sheriff, in a separate answer adopted as his answer, the allegations in the answer of the bank.

There is no dispute about what occurred and when. The bank alleged that the quitclaim deed was antedated, but there was no evidence to support this charge. Plaintiff contends that the lien of the bank's judgment expired on the lapse of three years after its rendition (Sec. 1105, R. S. 1929, Mo. Stat. Ann., sec. 1105, p. 1400), and that since her...