Ables v. Webb

85 S.W. 383, 186 Mo. 233, 1905 Mo. LEXIS 313

• Court: Supreme Court of Missouri
• Decided: February 15, 1905
• Status: Published

Opinion

LAMM, J.

— This is a suit in ejectment to recover of Webb, tenant, and the Leonard Mercantile and Realty Company, his landlord, the southwest quarter of section 23, township 28, range 32, lying in Jasper county, Missouri, on a petition in common form, laying the ouster at an unnamed day in 1894. The' answer was a general denial.

At the trial it was admitted the defendants were in possession; that the plaintiff had been ousted; that plaintiff, if entitled to recover, could recover only an undivided half interest in the land; that defendants denied her cotenancy, and that plaintiff’s husband had been dead fifteen years when she instituted her suit.

Though plaintiff had been discovert for fifteen, years, and though her cause of action, if any, accrued under a sheriff’s deed executed on October 10, 1878, yet as there was no such actual, open, unbroken and adverse possession in defendants and those under whom they held as to create a title by mere flux of time, the testimony on that branch of the case becomes immaterial.

Plaintiff, to show legal title and present possessory right in her, put in evidence the following duly recorded muniments of title:

1. A patent from the United States to David E. Moter, dated in 1873.

2. A warranty deed from said Moter to John Abies and Thomas F. Phillips, dated in 1875.

3. A deed from Beamer, sheriff of Jasper county to plaintiff, dated October 10, 1878, reciting that one W. A. Moter recovered judgment in the common pleas court of Jasper county on the fifth day of January, 1877, against Thomas P. Phillips, John Abies and A. B. Parkell for $35.70 and costs, on which execution issued on May 30, 1878, levy made on September 10, 1878, seizing the right, title and interest of said Phillips and Abies in lots-1, 2, 3 and 4 in Regans’ addition to the city of Carthage, and also an undivided half interest in the real estate sued for, a sale, made in bulk on October 7, 1878, to plaintiff as the highest bidder for $83.31, and a conveyance of the estate of Abies and Phillips in all said real estate to plaintiff. (This title deed will be hereinafter referred to as conveyance “A” for convenience of identification.)

Plaintiff .then rested.

Defendants put in evidence the following duly recorded title papers to show legal title and present possessory right in them:

1. A deed from said Beamer as sheriff, dated January 16, 1878, reciting the same judgment referred to in conveyance “A,” the issue of execution on October 23, 1877, a levy as of October 26-, 1877, on the right, title and interest of the judgment defendant, Thos. F. Phillips, in the real estate in question, together with ■his interest in certain lots in Holman’s, in Bulgin’s and in Elizabeth James’ additions to the city of Carthage, a sale made in bulk to the judgment creditor, W. A. Moter, as the highest bidder, for $7.50, and the conveyance of the estate of said Thomas F. Phillips in all said real estate to- said W. A. Moter. (For convenience this deed will be hereinafter referred to as conveyance “B.”)

2. A deed from said Beamer, sheriff, to one James P. Betts, dated September 18, 1878, reciting that three Cohns recovered judgment against W. A. Moter before one Tuttle, a justice of the peace of Marion township, Jasper county, for $28.45, on January 12, 1877, that a transcript was filed in the office of the circuit, clerk of said county on February 2,1877, an execution issued from said office on August 7, 1878, a levy as of August 17, seizing the interest of said Moter in the real estate sued for, a sale made on September 16,1878, to James P. Betts, as the highest bidder, for $8.50, and a conveyance of the estate of said Moter in said land to said Betts. (For convenience this deed will be hereinafter referred to as “0.”)

> 3. A deed from said Betts to one Hall conveying whatever title he acquired under “C,” of date August 4, 1879.

4. A deed from John Abies to Thomas F. Phillips conveying his undivided half of the real estate in suit, under date of December 21, 1876.

5. A deed of trust from Thomas F. Phillips, dated June 1, 1877, conveying the said real estate to Wilson, trustee for Clark, and securing money loaned. (Hereinafter referred to as conveyance “D.”)

6. A trustee’s deed, reciting the foreclosure of “D,” executed by Thomas, successor to Wilson, trustee, dated September 14, 1878, and conveying the land to said Hall.

7. A deed for the same premises from said Hall on August 28, 1893, to the Homestead Land Company, and a deed from said company to the defendant company dated October 25, 1898.

To-, fortify the sheriff’s deed evidenced by “0,” the defendants introduced the following:

8. ’The transcript of Tuttle, justice of the peace, filed as aforesaid, showing a judgment in due form on proper service in favor of the said Cohns against W. A. Moter, and narrating, inter alia, that an execution had issued thereon from the justice court on January 12, 1877, returnable in sixty days.

9. The execution itself directed to the constable of Marion township, Jasper county, dated January 12, 1877.

10. The return dated March 12, 1877, indorsed on said execution by said constable, which return set forth a garnishment of John Abies and Frank Phillips, and concludes thus: “by returning this writ no other property found upon which to levy this writ.. ’ ’

11. And further introduced the summons to said garnishees, dated January 12, 1877, commanding them to appear January 18, 1877, before said justice of the peace and answer interrogatories, with the return thereon showing service.

12. Defendants also introduced oral testimony tending to show that nothing was paid on the justice execution.

In rebuttal, plaintiff introduced oral testimohy tending to show that W. A. Moter, on the date of the justice execution in Cohn et al. v. Motor, and thereafter, resided in Union township, Jasper county, instead of Marion township; also the written answer of John Abies, as garnishee, admitting for himself and his co-garnishee, Phillips, an indebtedness to Moter on a blank date in 1877 in the sum of $35, which answer was sworn to at a date obliterated, and also introduced record evidence establishing the fact that Moter came into the said common pleas court on December 7, 1878, and filed his motion to have the proceeds of the sale under which plaintiff bought by conveyance “A,” paid over to him by the sheriff, and procured an order and got the proceeds.

Defendants prayed no instructions. The plaintiff prayed three: one, a peremptory declaration in her favor; another in effect asking the court to declare the law; to be that if Moter was a resident of Union township instead of Marion township from January 12, 1877, to September 16, 1877 (covering the life of the said justice execution and beyond), then the-execution issued by the circuit clerk on the transcript judgment, under which Betts bought, was void and conveyance “C” fell with it; and another, in effect, asldng the court to declare the law to be that if Moter bought under the first execution issued on his judgment against Phillips, Abies and Parkell, and received a sheriff’s deed “B,” and afterward caused a second execution to issue and the undivided half interest of the real estate in dispute to be levied on and sold as the property of the execution defendants, and plaintiff bought at the sale and received conveyance “A” and Moter accepted the proceeds of her bid, then Moter was estopped from denying that plaintiff by such purchase acquired the undivided one-half interest in the property so purchased by her at sheriff’s sale, and asserting that plaintiff, as against Moter, became the owner of such interest.

The court refused to so declare the law, plaintiff excepting, and followed its refusal with a judgment for defendants, and plaintiff appeals.

Conveyance “C” being allowed in evidence over the timely objection of appellant and exception saved, appellant renews here her assault on that conveyance, contending that (1) the justice execution was directed to the constable of the wrong township, that (2) it is prematurely returned, and that (3) the return thereon was not sufficient to constitute a return of nulla bona and, ergo, the transcript execution from the circuit clerk’s office under which Betts bought was improvidently sued out and void, thereby making Betts’s deed worthless.

If conveyance “C” falls under such attack, there would be left an outstanding title in ~W. A Moter, acquired by conveyance “B,” which must be reckoned with, and which, undisposed of, would defeat appellant, who must recover, if at all, on the strength of her own and not on the weakness of respondents’ title. To surmount this admitted obstacle appellant invokes the doctrine of equitable estoppel and contends that her third instruction should have been given.

On the foregoing facts and questions presented here, can the judgment below, palpably sound on the broad justice of the case at bar, be sustained on the ground of strict legal right? In our opinion it can be, because:

I. Observing the dates of the several deeds, it will be seen the record title was in Phillips when he borrowed, on June 1, 1877, the money secured by the foreclosed trust deed “D,” subject, however, to the lurking menace of the live judgment lien in favor of Moter for $35.70 in the case of Moter v. Phillips, Abies and Pafkell, in the common pleas court, of date of January 5, 1877; and it is shown by the record that Phillips’s then title passed to defendant company by foreclosure sale, and mesne conveyances. It will be seen further, that if conveyance “O” be a valid conveyance, then the title acquired by Moter in enforcing his judgment lien by sale and conveyance to bim by conveyance “B,” passed to Betts through “C” and to defendant company through mesne conveyances, so that the branch of the title split off by the first sale under the Moter judgment has again become grafted on the title acquired by foreclosing the deed of trust “D,” and the full title is in defendant company.

The statute in force at the time of issuing the transcript execution in hand, by the circuit clerk, was section 14, art. 7, chap. 82, Wag. Stat. 1870 (now sec. 4019, R. S. 1899) and containing this proviso: “but no execution shall be sued out of the court where the transcript is filed, if the defendant is a resident of the county, until an execution shall.have been issued by the justice, directed to the constable of the township in which the defendant resides, if there be one in such township, and, if not, to any constable in the county, and returned that the. defendant had no goods or chattels whereof to levy the same.”

A direct attack on a title under a sale, on an execution issued by a circuit clerk on a justice transcript, where the precedent justice execution is claimed to have been directed to the wrong constable, is one thing; a collateral attack is quite another thing, and this court has set its face against such collateral attacks as furnishing a mischievously inviting and easy method of unsettling land titles.

In Waddell v. Williams, 50 Mo. l. c. 222, Bliss, J., said: “The purchaser at sheriff’s sale is bound to know that the execution is sustained by a judgment, and by such a judgment as still authorizes its issue. No execution can issue to a sheriff upon a justice judgment unless a previous one has been issued to the proper constable and returned nulla bona, and a transcript has been filed. The purchaser then will examine the transcript and certificates, and may inspect the justice’s records and files, and in doing so will not be likely to find anything to show the actual residence of the execution defendant. Neither the summons . . . nor the execution . . . show such residence, and he will only see the summons was served, the judgment rendered, and the execution properly issued and returned. He has a right to presume that the defendant lived within the justice’s jurisdiction, and may safely purchase. If the proceedings have not been regular, those interested may attack them directly and show aVkmde facts — as that the constable was not an officer of the township where the defendant resided — that should set aside the proceedings.. But if the party supposed to be injured sleeps, strangers can not step in.”

The Waddell case has been followed and is now a rule of property in Missouri. [Pullis v. Pullis, 157 Mo. l. c. 592.] We therefore rule against appellant’s assignment of error, based on the refusal of her second instruction.

II. The justice execution was returnable in 60 days, but was returned in 59 days (its life being from January 12, 1877, to March 12, 1877). Did this vice in calculation make the subsequent transcript execution void and overthrow the sheriff’s deed “C?” This question is not res integra in Missouri. The precise point was passed on and held adversely to appellant’s contention in Whitman v. Taylor, 60 Mo. 127. The Whitman case was never overruled, and where the interest of third parties are involved, the doctrine there announced to the effect that such irregularity is not a weapon of collateral attack, remains the law. That no legal principle relating to land titles should be changed except on the best of reasons, is a proposition standing the test of every-day wisdom and is a beneficent axiom of real estate law. [Littlefield v Ramsey, 181 Mo. l. c. 620]. We rule this point also against appellant.

III. Was there sufficient return of nulla bona on the justice execution? The garnishment proceedings resulted in nothing. They seem to be yet held sub judice, though a generation has passed. The record has earmarks from which we infer that the garnishee, “Prank” Phillips, was none other than Thomas P. Phillips, and that he and his cogarnishee, John Abies, were none other than the judgment debtors in the judgment in favor of Moter in the common pleas court, and that the thirty-five dollars Abies referred to in his answer as due by him and Phillips to Moter were the same thirty-five dollars and odd cents of indebtedness merged in Moter’s judgment, and collected from them with costs by his two executions referred to in conveyances “A” and “B,” but whether this be so, or not so, the fact remains that the garnishment proceedings bore no fruit and were abandoned before the return of the execution. Hence, in final analysis, the reference to them in the constable’s return is without value in determining the pivotal question of the sufficiency of the return as a return of nulla bona. These constable returns must not be weighed as with a goldsmith’s scales, or viewed under a too powerful judicial microscope, or construed with sour and over-nice precision and narrowness. The courts should hold up to them the candle of common sense and interpret them with blandness and liberality to support titles long acquiesced in. If such returns comply with the spirit of the statute and are substantially in form, they are well enough. [Franse v. Owens, 25 Mo. 329; Ruby v. Railroad, 39 Mo. 480; Littlefield v. Ramsey, 181 Mo. 613; State ex rel. v. Still, 11 Mo. App. l. c. 285.] The return in this case: “and by returning this writ no other property found upon which to levy the writ,” is ' practically a return of nulla bona (the word “other” referring to the garnishment and being without a significance under this record’), and the return, judged of by its four comers, showing with reasonable certainty there was no property found whereof to levy the writ.

Prom these views, it results that conveyance “C” was a valid conveyance and was properly admitted in evidence.

IV. It is contended by respondents that even if conveyance “0” be rejected, there remains an outstanding title in Moter under conveyance “B” and hence appellant can not recover. To meet this contention, appellant insists that the title of Moter under “B” inures to her benefit under “A” on the doctrine of equitable estoppel. In answer to this contention, respondents assert that in ejectment the plaintiff must prove a legal title in order to recover, and that an equitable estate will not be sufficient. In reply, appellant contends that where, as here, the estoppel is used by the plaintiff defensively and not to create a title, such defensive use is allowed in the strict legal action of ejectment.

It is good law that plaintiff must proceed in equity to enforce his equitable rights, and will not be allowed to recover in ejectment on a mere equitable title. [Turner v. Baker, 64 Mo. 218; Clay v. Mayr, 144 Mo. 376; Kingman & Co. v. Sievers, 143 Mo. 519; Turner v. Dixon, 150 Mo. l. c. 422; Nalle v. Thompson, 173 Mo. l. c. 614.]

It has been said, however, that such condition of things may arise in the trial of an ejectment suit that plaintiff may use equitable estoppel to avoid the force of, or preclude defendant from the benefit of, a given conveyance. [Allen v. Sales, 56 Mo. l. c. 37; Suddarth v. Robertson, 118 Mo. l. c. 295; Tyler v. Hall, 106 Mo. 313.]

We shall decline to enter the inviting field of judicial exploration presented by the use of the doctrine of estoppel in an action of ejectment where the petition is in common form and the answer a general denial, and where the decisions are, at first blush, somewhat inharmonious. Because it is self-evident that if conveyance “C” is a valid conveyance, as we have just held, then all questions of equitable estoppel on one hand, and recovery on an equitable title, on tbe other, become purely academic questions in the case. No one would assert that if Moter got a title on January 16, 1878, under “B” (which stands admitted) and lost it to Betts on September 14, 1878, under “C,” as we hold, he could thereafter estop Betts by accepting the proceeds of the second sale in December, 1878, or by causing a second levy on the same land as the land of another, under which plaintiff acquired title, if at all, on October 10, 1878. Betts was no party to the second levy. He was no party to the motion and order of court under which Moter got the proceeds of plaintiff’s bid. He had no day in court, and he and those holding through him are not bound by the second levy, sale and deed.

Appellant’s third instruction was rightly refused, and so was her first. The judgment is affirmed.

All concur.