Chouteau v. Nuckolls

Scott, Judge, delivered the opinion of the court. 1. There were no such irregularities in the suit which resulted in a judgment for costs against Gratiot in favor of Robertson, as would render it a nullity. The judgment was rendered by a court of general jurisdiction, to which the cause, it appears, had been transferred, with the consent of both parties. It was regularly in the Gasconade Circuit Court by a change of venue from Franklin county. From Gasconade, it was transferred to Warren county by consent of parties,-where the final judgment was rendered. This was, no doubt, erroneous ; but it is not for error alone that a judgment of a court of general jurisdiction can be treated as a nullity in a collateral proceeding. [446] For error, a judgment must be reversed on appeal or writ of error, and if a party forgoes this method of correcting the errors of a judgment, he cannot afterwards set them up in avoidance of it, in a collateral action. If the party, by his conduct, had barred himself of his writ of error, the irregularity might have been corrected by the Circuit Court of Warren county, on motion. 2. The United States, on the 29th April, 1843, recovered judgment against Charles Gratiot, for the sum of $29,126 93, under which the land in controversy was sold on the 28th September, 1847. The fourth section of the act entitled an act in addition to the “ acts respecting the judicial system of the United States,” approved July 4th, 1840, declares that judgments and decrees hereafter rendered in the circuit and district courts of the United States within any state, shall cease to be liens on real estate or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such state now cease by law to be liens thereon. The lien of this judgment expired then, in April, 1846, as by our law three years is the duration of the lien of a judgment. 3. The pendency of a writ of error in the Supreme Court of the United States, on the judgment against Gratiot, did not affect the duration of the lien. The affirmance of that judgment would not prolong its existence, nor would the pen-dency of the writ continue the lien until the time of affirmance. This we consider plain from the words of the act creating the lien. 4. Execution was issued on the judgment obtained in the Warren Circuit Court against Gratiot, and on the 24th September, 1844, was placed in the hands of the sheriff of Franklin county, and was levied on the following day, and the land-in controversy sold by virtue of said levy on the 21st April, 1845. From this statement of facts, it follows that the land was sold with the lien of the judgment of the United States upon it; but as the United States permitted the lien of their judgment to expire before the land was sold under their execution, the pur [447] chaser under the execution from the state court obtained the elder legal title. 5. The remaining question in the cause is, as to the fraud in conducting the sheriff’s sale. No doubt the evidence of fraud was sufficient to avoid the sale, as to Robertson, the purchaser ; but the land since has gone into the possession of those who claim that they are purchasers in good faith for value, without notice, and cannot be disturbed in the enjoyment of rights thus obtained. We do not consider that the' deed, on its face, bears any evidence of fraud. The smallness of the consideration is not of itself evidence of fraud. It is a circumstance that may be weighed along with others,, in determining the question of fraud, but of itself it does not-show fraud. The fact that the land was subject to the lien of the United States judgment may have had its influence on-the sale. 6. We consider the finding of the court insufficient on the-subject of fraud. The finding should have stated explicitly whether the defendant was affected with notice of the fraud of' those through whom he claimed the land in controversy. We see no objection to the admission in evidence of the declaration made by Chouteau at the administrator’s sale. It is-not sufficient however that such declaration should have been made; it should also appear that notice of it came to the defendant. With the concurrence of the other judges, the judgment will be reversed, and the cause remanded.