Young v. Schofield

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

34 S.W. 497

132 Mo. 650

Young v. Schofield, Appellant

Supreme Court of Missouri, Second Division

March 3, 1896

Appeal from Marion Circuit Court. -- Hon. Reuben F. Roy, Judge.

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 eighteenth 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, Thos. A Young, the plaintiff.

After some preliminary remarks, showing from whom the title to the land was derived and giving a description of it, the petition herein states: "That this plaintiff afterward, 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 a 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, afterward, 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, afterward, to wit, on the first 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 $ 50 as aforesaid promised and agreed upon; which said sum of $ 50 defendant herein kept and used. And so plaintiff says that said indebtedness was then and there fully satisfied and paid.

"That defendant Schofield, afterward, 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. 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 first 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 that the payment of the $ 50 was an accord and satisfaction of the indebtedness owing at the time such payment was made.

This is a sufficient description of the pleadings. The facts as disclosed in evidence are noticed, so far as necessary, in the following opinion.

Reversed.

L. F. Cottey for appellant.

(1) Defendant's objections should have been sustained, to the introduction of any oral testimony, tending to impeach or explain the return of the sheriff of Lewis county. That return is regular upon its face and is conclusive, until it is amended, or impeached by action of the party injured, for falsity. It can not be attacked in a proceeding of this kind. Hallonell v. Page, 24 Mo. 593; Delinger v. Higgins, 26 Mo. 180; McDonald v. Lewright, 31 Mo. 29; Reeves v. Reeves, 33 Mo. 28; Stewart v. Stringer, 41 Mo. 404; Jeffries v. Wright, 51 Mo. 219; Deggendorf v. Bartholow, 69 Mo. 194; Bank v. Suman, 79 Mo. 532; Heath v. Railroad, 83 Mo. 623; Decker v. Armstrong, 87 Mo. 319; Ayres v. Duprey, 27 Tex. 598; Flaniken v. Neal, 67 Tex. 631; Clough v. Monroe, 34 N.H. 389; Huntress v. Tiney, 39 Me. 241; Hotchkiss v. Hunt, 56 Me. 254; Sykes v. Keating, 118 Mass. 520; Egery v. Buchanan, 5 Cal. 56; Martin v. Barney, 20 Ala. 372; Rowell v. Klein, 44 Ind. 292; Murfree on Sheriffs, sec. 868, and cases cited. (2) The facts are that the mortgaged property levied upon by the sheriff of Lewis county was at the sale abandoned by the officer, and the plaintiff in the execution; left in the debtor's possession and restored to him. The law is, that where personal property levied upon sufficient to satisfy the execution, has been restored to the owner, there is no satisfaction of the execution. And so where the chattels levied upon are abandoned and left in the debtor's possession, no satisfaction of the judgment can be presumed to ensue. This, upon the just principle, that the execution defendant has sustained no loss. Black on Judgments, sec. 1008; Freeman on Judgments, sec. 475; Herman on Executions, sec. 176; Williams v. Boyce, 11 Mo. 538; Blackburn v. Jackson, 26 Mo. 310; Thomas v. Cleveland, 33 Mo. 127; Colvin v. Six, 80 Mo. 64; Warrensburg v. Simpson, 22 Mo.App. 699; Weber v. Cummings, 39 Mo.App. 522; In matter of King, 21 Am. Dec. 335; Tarpnall v. Richardson, 13 Ark. 550; Chandler v. Higgins, 109 Ill. 608; People v. Hopson, 1 Denio (N. Y.), 578; Peck v. Tiffany, 2 N. Y. (Comstock) 456; Bank v. Rogers, 15 Minn. 386; Hanness v. Bonnell, 23 N. J. Law, 164; Sasseer v. Walker, 5 G. & J. (Md.) 109; Dilling v. Foster, 21 S.C. 338; Wright v. Young, 6 Oregon, 90; Cornelius v. Burford, 28 Tex. 206; Williams v. Bowden, 1 Swan (Tenn.), 285; United States v. Dashiel, 3 Wall. 699. (3) The law is, that the payment in money of a part of an undisputed debt, which is due, is not a good satisfaction of the entire debt, even if accepted in full satisfaction; unless there is a new consideration. Riley v. Kershaw, 52 Mo. 226; Brewery Co. v. Schoenlau, 32 Mo.App. 360; Deutmann v. Kilpatrick, 46 Mo.App. 629; Maack v. Schneider, 51 Mo.App. 101; Floerke v. Distilling Co., 20 Mo.App. 78; Wheeler v. Wheeler, 11 Vt. 66; Fitch v. Sutton, 5 East, 230; Curtis v. Martin, 20 Ill. 577; Gassett v. Andover, 21 Vt. 351; Pennel's Case, 3 Co. 238.

O. C. Clay and H. J. Drummond for respondent.

(1) Thomas A. Young, plaintiff a...