John Deere Plow Co. v. Brown

*184 RAGLAND, J. This is an appeal from an order of the circuit court quashing the levy of an execution upon certain lands. On December 14,1921, a general money judgment was rendered by the Circuit Court for Morgan County in favor of plaintiff and against defendant for the sum of $6320.82. Subsequently, on August 15, 1922, the following proceedings were had in that court, according to a record entry: *185 “Now on this 15th day of August, 1922, comes the defendant C. W. Brown by his attorneys and files herein his motion praying the court to quash the levy heretofore made upon lands, under execution issued herein, and the court, upon hearing said motion and the argument of counsel for plaintiff and defendant, but without hearing any evidence in behalf of either party, doth sustain said motion and doth order that said levy be null and void and for naught held. ’ ’ The motion to quash as disclosed by the bill of exceptions was as follows: “Gomes now the defendant and moves the court to quash the levy under execution issued from this court on judgment heretofore rendered in this court in favor of plaintiff and against the defendant for the following reasons, to-wit: “Because the title to the land levied upon under said execution is held by the defendant and his wife, Elizabeth L. Brown, as an estate by the entirety and is not subject to seizure and sale under execution for the debts of husband-defendant alone, and on which said land both defendant and his said wife now live as their home, ánd said real estate being purchased from funds furnished by both defendant and his said wife.” The motion was verified. The bill of exceptions recites: “The court did not permit the introduction of any evidence in behalf of either plaintiff" or defendant. ’ ’ Plaintiff filed motions for a new trial and in arrest which were'overruled. Exceptions to the rulings of the court were duly saved. I. The action of the trial court cannot be sustained. It was based on facts which were purely hypothetical. No evidence was offered in support of the allegations of the motion, and the record is wholly barren of any suggestion of an admission or waiver that dispensed with proof. The very basis of the relief sought was the existence of an *186 execution and a levy thereunder and even this was not shown. [Blandon v. Martin, 50 Mo. App. 114.] An execution is not a part of the record proper (Smith v. Moseley, 234 Mo. 486, 489) until after it is returned (Sec. 2334, R. S. 1919), and until that time the court out of which it issued cannot take judicial notice of its issuance, much less of the action of an officer in making a levy under it. The motion was verified, but there is no -statutory requirement that a motion to quash an execution or a levy, made in term time, be verified. [Heuring v. Williams, 65 Mo. 446.] As the-verification was without statutory sanction, it was purely voluntary and did not make the motion evidence of its own contents. The verified motion, as evidence, was neither more nor less than a voluntary affidavit and as such was inadmissible. [Patterson v. Fagan, 38 Mo. 70; Patterson v. Maryland Insurance Co., 5 Am. Dec. 420.] II. The issues tendered by the motion called for the determination of questions of title and possibly of fraud. It was alleged that: “the title to the land levied upon under said execution is held by the defendant and his wife, Elizabeth L. Brown, as an estate by the entirety, and is not subject to seizure and sale under execution for the debts of husband-defendant alone, . . . said real estate being purchased from funds furnished by both the defendant and his said wife. ’ ’ When was the alleged title of the husband and wife acquired with reference to the dates of the judgment, execution and levy? Was it taken in their joint names for the purpose of defrauding his creditors ? These and many other related questions which readily suggest themselves were at least -potentially involved in the issues tendered. The proceeding was not an appropriate one for the determination of such" issues. [Freeman on Executions (3 Ed.) 1528.] Title to real estate cannot be tried and determined on a motion to quash a levy under execution. [23 C. J. 47.] Some of the reasons for the rule find expression in State v. Clymer, *187 81 Mo. 122, 125, which involved the right of a stranger to the record, to be heard on a motion to quash an execution. It was said: ‘ ‘ The case at bar is an apt illustration of the difficulties suggested. K. Clymer, a stranger to the action, appears at the instant of the sale for the enforcement of plaintiff’s judgment, and by mere motion, raises questions involving his identity with the person named in the writ, denying any title or interest of the defendant in the writ to the land levied on, and ready for sale, and alleging title in himself to the land. In this. summary mode, without other form of pleading, eo instcmti, the court is called upon, while the sheriff, perhaps, is waiting at the court-house door to proceed with the sale, to hear and determine these complex questions of personal identity and of the ownership of real estate. It was, certainly, never in the contemplation of the law, that the title to real estate, between a stranger to the record and the execution defendant, should be tried and disposed of in such a manner. The parties are entitled to a jury, and to time to prepare to try so grave issues, as provided by statute. Such a method would supersede the action of ejectment in many instances, as well as the orderly and graver proceedings by bills in chancery. ’ ’ That reasoning is just as applicable to the situation presented by the case at bar where the defendant himself attempts to set up title in a third person — that fictitious person in which the persons of husband and wife in contemplation of law are merged. There are other remedies available to the defendant and his wife which are fully adequate to furnish the relief sought and to one of them they must resort. III. Pending the appeal respondent has filed here a certified copy of the record of the District Court of the United States for the Western District of Missouri showing that he has been adjudged a bankrupt, accompanied by a motion in which he asks that this proceeding be stayed until he receives his discharge in bankruptcy and that it then be finally dismissed. The circuit court in *188 which, the judgment was rendered and whose process has been invoked for its enforcement is the proper forum in which to make such an application. The motion will he overruled without prejudice. The order appealed from is reversed and the levy set aside by it re-instated. All concur.