Lillard v. Shannon

Napton, Judge, delivered the opinion of the court. This suit was commenced in May, 1864, and originally the plaintiff was one Whitley, since dead, and subsequently Mrs. Atm Montgomery, who was the beneficiary in the deed to Whitley, and upon the death of both Whitley and Mrs. Montgomery, Lillard and others, sole heirs of Mrs Montgomery, were made plaintiffs. The facts in the case appear to be these ; On the 14th of February, 1863, one Buford Menifee, 'then a resident of Andrew County, Mo., and owning in conjunction with William Whitley, a tract of land on which he lived, sold his half of said farm (the whole tract being a few acres under seven hundred) to Mrs. Montgomery, a sister of Whitley, who lived in Kentucky. This purchase was made through Mrs. Montgomery’s agent, oneKipinger, aí?d a portion of the purchase money was paid down, and the remainder secured by notes. There seems to be no question on either side, of the good faith of this purchase. Mrs. Montgomery, who was then a married woman, had ample means of her own left to her by [524] lier father, and her husband seems at that time to have been absent from Kentucky, traveling in Canada or some of the Northern States — in fact, as may be conjectured from the date, getting out of the reach of the civil commotion then rife in his State. The consideration for this sale was $4,000. On the 16rh of February, 1863, a deed was made to Whitley, trustee, who was a brother of Mrs. Montgomery, and was acknowledged on that day by Menifee. Mrs. Menifee was not then, on account of the weather, able to travel to Savannah, and her acknowledgment was not taken till July 17th, 1863, and on the 18th of July, the deed was duly recorded. On the 6th of May, 1862, one Russell obtained judgment against Menifee for $667, in Nodaway county. On the 22d of May, 1862, an execution was' issued to Andrew county, where Menifee lived, returnable on the third Monday in November, 1862. On the 3rd of October, 1862, this execution was returned unsatisfied. On the 17th of December, 1862, an alias writ issued, which was returnable on May 4th, 1863, and which came to the hands of the sheriff of Andrew county in December, 1862. On the 10th of June, 1863, this writ was levied on personal property7 of Menifee, amply sufficient to satisfy it, and the property w7as advertised to be sold on the 23d of June, 1863., By agreement between plaintiff in the execution, the sheriff, and defendant, Menifee, the sale was postponed till the 17th of October, 1863. This agreement was entered on the execution, and Menifee gave a forthcoming bond, on which Woodcock, Pen, Gilman, éso., were securities. There is abundant evidence that the personal property was amply sufficient to satisfy the execution. It is so averred in the petition, and the proof clearly7 establishes the fact. On the 22d of August, 1863, as appears by the return and the deed made in conformity with the sale, the sheriff levied this execution upon the - land in controversy7, that is upon Menifee’s half interest in the seven hundred acres upon which the farm was. Upon the 12th of September, 1863, the [525] sheriff advertised the land to be sold on the 8th of October, 1863. This day fixed for the sale, it will be observed, was nine days before the personal property already levied on, was, by the forthcoming bond, to' be delivered. The sale of the land took place on the day advertised, and was bid on by John McLain, in the name of the defendants, one of whom is his son, and the other a near relation. John McLain paid the money bid, which was about $400. ■ The deed of the sheriff was made to defendants. The allegations of the petition, which seeks to set aside the sheriff’s deed, are that John McLain and the defendants knew of this previous levy on personal property of Menifee, and charges that these transactions were fraudulent; that there was a conspiracy between the sheriff and Menifee and John McLain, to defraud Ann Montgomery out of her property ; that they all knew of her title, and that the land was sacrificed. The petition charges that defendants took possession under the deed of the sheriff; that plaintiff never lived here, had no knowledge of the lien or judgment of Eussell, or of any judgment against Menifee. The petition further charges that the rents and profits of said land are worth $1,200 per year, and charges a confederation between Eussell, Menifee, Woodcock, McLain, &c., whose object was to divert the personal property of Menifee to pay debts due Woodcock & McLain. It charges that they paid the amount due on the execution over and above the $400 bid on the land, and charges notice of the deed to Mrs. Montgomery. The answer in this case need not be specially noted, as it denies every allegation in the petition, and sets up affirmatively that the defendants have made improvements and paid taxes amounting to $5,000. The court decreed that the sheriff’s deed be set aside, and declared null; that plaintiffs recover the possession of their half interest derived from the deed of Menifee, and that defendants pay $1,025.40 for the use of the land, after deducting [526] taxes and improvements made by them, and monthly rents at 16.66 per month, until the plaintiffs are put in possession. There is no doubt that the levy made by the sheriff in August, 1863, was a valid one, and that the act of February 15, 1863, in relation to the courts in certain. counties, among which were Nodaway and Andrew, kept this execution in force after the return day. The levy, sale and deed, then, constitute a prima facie title. Nor can it be maintained that the prior levy on personal property, of itself, destroyed the vitality of the writ. In Moss vs. Craft, (10 Mo., 720) it was held that an execution on a judgment against principal and surety, levied on property of the principal,which for want of bidders was not sold, could still be levied on the property of the surety. In the case of Williams vs. Boyce (11 Mo., 538), it was held, that the levy of an execution on property sufficient to satisfy the execution, and its release and the return of the property to defendant, was no satisfaction of the execution. And in Blackburn vs. Jackson, (26 Mo., 310) a formal levy of an execution upon defendant’s property, when the property levied on was returned to him, did not operate as an extinguishment of the judgment. The statute in force at the date of the execution, (R. C. 1855, pp. 745-6, § 21) provided that ;£no execution shall be a lien on slaves, goods, chattels or other personal property, or the rights or shares in any stock, or any real estate to which the lien of the judgment order or decree does not extend, or has expired, but from the time such writ shall be delivered to the officers of the proper county.” As the judgment of Russell was obtained in Nodaway county, the lien on the land of defendants only took date from the day the sheriff of Andrew county received it. Apparently at that time, on the deed of the sheriff, the title was in defendants. Had it been otherwise, it would be difficult to see the grounds of this proceeding ; for if the levy and sale and deed were all illegal, the plaintiffs could have maintained an ejectment, and would have no occasion to go into a court of equity. [527] The propriety,of the decree, then, depends upon the peculiar facts which, in this ease, attended the second levy, and which were such as to satisfy the Circuit Court of an unfair combination on the part of the sheriff and defendant in the execution, and the purchaser, McLain, to transfer an execution against personal property amply sufficient to satisfy it, to a tract of land sold to a non-resident, a woman who could not be there to protect her.interests. It appears very clearly that McLain, and perhaps others, were creditors of Menifee, to a small amount, and arranged with the sheriff to let alone this personal property levied on, and for the forthcoming of which ample secnrity had been given. There was no release of the personal property levied on ; but it was arranged with a view to enable Menifee to. sell the property that the execution should be transferred to the land bought in February by Mrs. Montgomery, and the deed to which was then on record, and of which sale all the parties had actual knowledge; and although the sale of the land brought only $400, the purchaser paid up the $300, etc., still due on the execution. It is simply, then, a question of fraud. The plea of defendants being purchasers without notice is entitled to. no consideration. The land was bought by McLain, and the title put in his son and nephew, who, it is likely, knew nothing whatever of the circumstances. They represent him, for all purposes of this action, and the plea of innocent purchasers, without notice, etc, cannot avail. (Meroy vs. Abney, 1 Ch. Ca., 38). We think the decree was right, and therefore affirm the judgment. The other judges concur, except Judge Tories, who had been of counsel.