Young v. Schofield

• Decision Date: 03 March 1896
• Citation: 34 S.W. 497,132 Mo. 650
• Parties: YOUNG v. SCHOFIELD.
• Court: Missouri Supreme Court

34 S.W. 497

132 Mo. 650

YOUNG v. SCHOFIELD.

Supreme Court of Missouri, Division No. 2.

March 3, 1896.

QUIETING TITLE — REMOVAL OF CLOUD — PETITION — REPLY — EVIDENCE — EXECUTION SALE — NOTICE — JUDGMENT — SATISFACTION.

1. In an action to cancel as a cloud on title a sheriff's deed made November 18, 1892, to land in M. county, sold under execution issued July 1, 1892, on a judgment rendered in K. county against J., June 12, 1889, it appeared that the levy was made July 18, 1892. The petition, after showing the source of the title and describing the land, alleged that plaintiff, "on the ____ day of ____, 1892, in good faith and for full value," purchased such land of J., who executed and delivered a deed to plaintiff on the same day, and plaintiff paid J. the purchase money, and immediately placed such deed on record in the recorder's office in M. county, and took possession, and ever since has been, and is now, the owner in fee in possession. Held, that the petition failed to state facts showing that plaintiff was an innocent purchaser.

2. The only evidence to show that plaintiff was an innocent purchaser without notice was a stipulation filed that, at the date of the purchase by the plaintiff of the land in question from a judgment debtor, he had no personal notice of the issue or levy of an alias execution on such land. Held insufficient to show that plaintiff was an innocent purchaser.

3. It appeared that the levy of an execution on land in M. county on a judgment in K. county was properly made July 18, 1892, and on the same day notice of such levy was filed with the recorder of deeds, etc. Held, that such levy created a lien on the land, and was notice to subsequent purchasers, and a sale under the levy gave the purchaser at such sale a superior title to that of a purchaser from the judgment debtor after the levy.

4. Rev. St. 1889, § 2049, requires the answer to contain (1) a general or specific denial of each material allegation of the petition controverted by defendant, and (2) a statement of any new matter, etc. Section 2052 employs similar language relative to what a reply shall contain. Held, that a reply to an answer setting up new matter is insufficient which "denies each and every allegation and statement therein which is or are in any way inconsistent with the allegations in the petition" and "all new matter pleaded in said answer."

5. Under Rev. St. 1889, § 4943, requiring notice in writing to a defendant in an execution of "all execution sales," where a judgment is rendered in a county where defendant resides on personal service of notice, and an execution is issued to, and levied on defendant's land in, another county, he is entitled to notice of the levy and sale.

6. The failure to give a defendant in execution notice in writing of execution sale of his land, as required by Rev. St. 1889, § 4943, is a mere irregularity, which does not render the sale void, and which can be taken advantage of only by the execution defendant.

7. Where an execution is levied on personal property on which there is a mortgage executed by the judgment defendant, under which it is soon afterwards sold to satisfy the mortgage debt, such levy and a sale thereunder are nugatory, and defendant is entitled to no credit on the execution on account thereof.

Gantt, P. J., dissenting.

Appeal from circuit court, Marion county; Reuben F. Roy, Judge.

Action by Thomas A. Young against Robert F. Schofield to cancel a sheriff's deed to certain land sold under an execution against John C. Young, who conveyed the land to plaintiff. From a judgment for plaintiff, defendant appeals. Reversed.

The plaintiff, a brother of John C. Young, seeks, by this equitable proceeding, to have canceled a sheriff's deed made to defendant Schofield, November 18, 1892, for certain land in Marion county, the judgment under which the sale occurred having been rendered in Knox county, June 12, 1889, for the sum of $232.63, in favor of Schofield, and against John C. Young, who resided in Lewis county. Execution issued on this judgment July 1, 1892, and was levied on the land in controversy, in Marion county, on the 18th of that month. Pending the lien on, and sale under, the execution which found its consummation in the deed which plaintiff seeks to cancel, John C. Young made a deed to his brother Thomas A. Young, the plaintiff. After some preliminary remarks, showing from whom the title of the land was derived, and giving a description of it, the petition herein states: "That this plaintiff afterwards, to wit, on the ____ day of ____, A. D. 1892, in good faith and for full value, purchased said John C. Young's undivided one-eighth in the aforesaid described land, inherited as aforesaid; and that said John C. Young executed and delivered his deed therefor to plaintiff on said day; and plaintiff paid said John C. Young the purchase money for said land, and immediately placed said deed on record in the recorder's office in said Marion county, Missouri, and took possession of said premises, and ever since has been, and is now, the owner in fee in possession thereof." The petition then, after reciting some of the matters above set forth, states that on December 27, 1889, execution was issued on the judgment aforesaid, and levied on certain personal property of the defendant therein, John C. Young, subject, however, to a chattel mortgage executed by said Young to one Sheckles, as well as on certain other personal property of said Young; that defendant bid in the property, which was knocked down to him, and amounted to the sum of $200; that, by reason of said sale, a dispute arose between John C. Young and the then plaintiff, now defendant, Schofield; that defendant Robert F. Schofield afterwards, to wit, on the ____ day of June, A. D. 1892, more than three years after the rendition of said judgment aforesaid, and when said judgment lien had expired, still exercising and claiming ownership thereof, promised and agreed, in writing, with said John C. Young, that if he (John C. Young) would pay him the sum of $50 on or before August 1, 1892, he would take and receive the same in full satisfaction and payment, and would release said John C. Young from his entire indebtedness, and deliver the same to him canceled, which said proposition the said John C. Young accepted, and agreed to pay said sum in full payment and satisfaction, as aforesaid. Plaintiff further states: "That, in pursuance of said written contract and agreement, said John C. Young did afterwards, to wit, on the 1st day of August, A. D. 1892, at and in the city of Edina, in Knox county, Missouri, comply therewith, and did then and there pay to said defendant herein said sum of fifty dollars, as aforesaid promised and agreed upon, which said sum of fifty dollars defendant herein kept and used; and so plaintiff says that said indebtedness was then and there fully satisfied and paid." That defendant Schofield afterwards, on July 18, 1892, caused an alias execution to be issued on said judgment, with intent to injure and defraud John C. Young, and to be levied on the real estate in question, and the same to be sold November 18, 1892, as the property of John C. Young, and bid in the same, and received a deed therefor, and put the same to record; and that said apparent conveyance is a cloud on plaintiff's title. That said deed was made without any consideration deemed valuable in law, for the reason that the judgment before the day of sale had been satisfied. Then follows a prayer for cancellation, etc. A marginal amendment was made to the petition to the effect that the land sold was in a different county to that of defendant Young's residence, and he was not notified, etc. The answer admits the judgment against John C. Young in the circuit court of Knox county for $232.63, and that execution was issued thereon, and sent to the sheriff of Lewis county, and levy there made, as stated in the petition; admits that an alias execution was issued on said judgment, and sent to the sheriff of Marion county, under and by virtue of which the land in question was sold, and deed made to defendant; denies each other allegation in the petition. The answer then alleges that all the mortgaged property levied upon under said execution was after said sale restored to John C. Young, and that he and the plaintiff are estopped from claiming that John C. Young was entitled to any other credits than those given by the sheriff's return aforesaid; that the amount remaining due after said sale from the judgment debtor John C. Young was $236.35, and of this amount there was not, in fact, and could not be in law, any dispute, disagreement, doubt, or uncertainty; that John C. Young paid him $50 on said judgment August 1, 1892, but denies that he agreed to or did receive that sum in satisfaction of said judgment; that he notified John C. Young long prior to the 1st day of August, 1892, that he would not accept said $50 in satisfaction of said debt; that, after payment of said $50, there still remained unpaid on said judgment the sum of $246.75; that said alias execution was levied upon the lands in controversy prior to the execution of the deed from John C. Young to plaintiff, and notice of such levy recorded, etc.; that plaintiff's pretended purchase was not made in good faith, but was intended to be made, and was made, in fraud of defendant's rights, and for the purpose of casting a cloud upon the title to said lands under said execution sale. Then follows a prayer for cancellation of deed to plaintiff, and for possession of the land in litigation. For reply to the answer, plaintiff "denies each and every allegation and statement therein which is or are in any way inconsistent with the allegations in the petition contained; and plaintiff especially denies all new matter pleaded in said answer of defendant." The reply then proceeds to reiterate, in substance, the allegations of the petition, and winds up by declaring...