Stillwell v. McDonald

39 Mo. 282

• Court: Supreme Court of Missouri
• Decided: October 15, 1866
• Status: Published

Opinion

Holmes, Judge,

delivered the opinion of the court.

But a single question is presented by the record in this case, and that is whether the purchaser at a sheriff’s sale under a judgment and execution in an attachment suit levied on real estate, will take the title against a prior deed executed and delivered before the date of the levy of the attachment, though not rendered until after such levy, but duly acknowledged and recorded before the judgment sale and sheriff’s deed to the purchaser. This question must be considered as already decided and put at rest by the former decisions of this court in Davis v. Ownsby, 14 Mo. 170, and in Valentine v. Havener, 20 Mo. 133. It was held that the object of recording was to impart notice to subsequent purchasers and mortgagees, and not to creditors merely as such ; that a creditor acquired a lien by his judgment which would bind the estate against any subsequent act of the defendant, but that the purchaser at the sale under the judgment was the first person to be affected by the notice as a purchaser. The lien of an attachment can certainly give no greater interest, or be more effectual, than the lien of a judgment. A deed unrecorded is not to be valid except between the parties, but between the parties it is valid and conveys the title. At the date of this levy, then, the defendant in the attachment suit had no interest or property in the estate conveyed which could be subject to attachment as his property, and the plaintiff acquired no interest in it by virtue of his levy. He did not thereby become a purchaser in the sense of the statute; but before the sheriff’s sale and deed the prior conveyance had been duly acknowledged and recorded, and the purchaser at the sale was affected with notice. We think the deed was rightly admitted, and that there was no error m the ruling of the court below.

Judgment affirmed.

The other judges concur.