Davison v. Robertson

N'apton, J. This case presents difficulties growing out of a somewhat novel and peculiar state of facts. The defendant went into possession of the land in dispute, in 1864, under a sheriff's deed, based on a valid judgment, but of no validity itself, because of the levy of the execution having been made after the return day of the writ. There could be no difficulty in applying to this case the principles decided in Howard v. North, (5 Texas 315,) following various decisions in Kentucky, Louisiana and South Carolina, and followed by this court in Valle v. Fleming, (29 Mo. 152,) and McLean v. Martin, (45 Mo. 393,) if the 211 ■debtor, Gabriel Long, had been the party plaintiff. But ■the plaintiff is a creditor of Long, and in 1870 commenced his attachment suit against this land, and perfected it by ■a sheriff’s deed in June, 1872. In 1871 the defendant procured a quit claim deed from the heirs of Jacob Bird, an whom the legal title was all along vested. This was done with a view to protect his possession, acquired under his purchase in 1864, and he had a right to do this. (Freeman's Oh. R. 123.) Strange to say, the plaintiff adopts this sale and conveyance to save him from the trouble of making the heirs of Bird parties in this suit for a transfer ■of their legal title; as he says, the defendant has already acquired it, and he insists on a transfer of this legal title ■of defendant to him, without any compensation for the money defendant paid on his purchase, or the taxes he paid for nearly ten years. That Long could not do this is clear. The question is, does his creditor in 1870 occupy a better position ? Is he entitled to do what Long, the debtor, would not be allowed to do ? I am not satisfied to answer this question in the affirmative; but as all the other judges concur that this equity of the defendant does not reach Long’s creditor, this judgment must be affirmed. The purchase of the mortgage of Long to Hail & Knott in December, 1861, by defendant in 1873, cannot avail the defendant in this suit, because he failed to prove that Long intended to convey the tract in controversy, and for aught that appeared, Long may have owned a quarter quarter section in section 14, as described in the conveyance. It was proved by the plaintiff that Bird did not, but it did not follow from this proof that Long may not have owned such land. Judgment affirmed. Affirmed.