Bradley v. Heffernan

MARSHALL, J. This is an action, begun in the Greene County Circuit Court, on the 23d day of August, 1897, under the provisions of the act of March 15, 1897 (Laws 1897, p. ,74, R. S. 1899, section 650). The petition alleges that the plaintiff is the owner, in fee simple, and in possession of certain land in Greene county; that the defendant claims an interest in the lands adverse to the plaintiff, and claims to own some right, title and interest therein, — 657 — but in fact has no interest and has never been in possession, and prays the court to ascertain and determine the interests of the parties in the land, and to adjudge that the defendant has no interest therein. The amended answer, filed by leave during the trial, is, 1st, a general denial, with a prayer* for possession;- 2d, a plea that the judgment under which the plaintiff claims title had been paid off and discharged before the day of sale; 3d, a plea that the sheriff published the notice of sale for only twelve days and hence no title passed to plaintiff by the sheriff sale; 4th, a plea that the defendant “claims title by virtue of a sheriff’s deed, based on various judgments rendered against one Conrad Eckas, and prays judgment against the plaintiff for the possession of the real estate sued for herein.” The extremely meager statement of the facts in the petition and answer make it necessary to refer to the facts developed on the trial in order to understand the nature of the controversy. Conrad Eckas is the common source of title, and both parties claim as purchasers under execution issued upon judgments rendered against Eckas. The plaintiff claims under a sheriff’s deed, made under execution sale, on December 23d, 1896, based upon three judgments rendered by the circuit court of Greene county on September 17, 1896, against Conrad Eckas, andón favor of Lawson Brothers for $159.18, the Logeman Chair Manufacturing Company, for $159.18, the same company for $393.25, and a judgment rendered by a justice of the peace of Greene county, on September 1, 1896, in favor of E. A. Rauch & Co., for $203.75, a transcript of which was filed in the circuit clerk’s office on September 4, 1896. The defendant claims under a sheriff’s deed, made under execution sale on March 18, 1897, ba'sed upon sixteen judgments, two of which were rendered by the circuit court — 658 — of Greene county, in favor of Overbeck Bros. & Co. and Jasper Wild & Co., on the 14th of January, 1897, for amounts not disclosed by the record, and the other fourteen were rendered by some justice of the peace, it is not shown whom, on the 38th of August, and the 31st of October, 1896, for amounts not specified, transcripts of twelve of such judgments were filed in the circuit clerk’s office on November 3d, and of one of such judgments on December 15, 1896, and transcripts showing nulla bona returns were so filed as to all of said judgments on January 25th and 27th, 1897. The executions under which the plaintiff derives title were levied on the 28th of October, 1896, those under -which the defendant derives title were levied on the 5th and 8th of February, 1897. The sale at which the plaintiffs bought was on the 23d of December, 1896, during the September term, 1896, of the circuit court, and the sale at -which the defendant bought was on the 18th of March, 1897, during the January term, 1897, of that court. After the levy of the executions under which plaintiff claims title had been made the plaintiffs bought and took an assignment of the judgments upon which those executions, were based, from the judgment creditors, paying therefor sixty or sixty-five cents on the dollar, and at the sale he bought the property for sixty dollars.. The defendant paid fourteen dollars for the property at the sale, under the sixteen executions, on March 18, 1897. The sheriff published the notice of the sale under the plaintiff’s execution for the first time on the 27th of November, 1896, for the second time on December 4, 1896, for the third time on December 11, 1896, for the fourth time on December 18, 1896. This notice of sale covered all the property for which the trial court gave the plaintiff judgment. Some time prior to the 11th of December, however, it was discovered that the notice did not cover all the property owned by Eckas, so the — 659 — sheriff published a second notice on the 11th and 18th of December, covering all the property covered by the first notice and also the subsequently discovered property. The sale took place on the 23d of December, 1896, so the second notice was only published twelve days before the sale. The petition embraced all the property referred to, but upon objection of the defendant the trial court decided that the plaintiff could not recover as to such subsequently discovered property, so published for sale for only twelve days, and thereupon the plaintiff by leave, and against defendant’s objection, struck out of his petition all reference to such subsequently discovered property. - The September term of the Greene County Circuit Court began on the second Monday in September, and continued in session until' the 24th of December, 1896, and its January term began on the second Monday in January, 1897. The judgments of the circuit court under.which plaintiff claims title, were rendered on the 15th- of September, 1896. The transcripts of the justice’s judgments under which the defendant claims title were filed in the -circuit clerk’s office, twelve of them on the 2d of November, and one of them on the 15th of December, 1896, and the transcript showing the nulla bona returns thereon were filed in said clerk’s office on the 25th and 27th of January, 1897. The trial court entered judgment for the plaintiff, and' defendant appealed. The defendant assigns three errors: 1st, that the judgments under which the plaintiff derives title were paid and discharged before the sale under the executions issued thereon; 2d, that plaintiff acquired no title because the notice of the execution sale was only published for twelve days; and 3d, that he has title based upon his purchase at the execution sale upon the sixteen judgments. — 660 — I. The first contention of the defendant is that the judgments under which the plaintiff derives title were paid and discharged before the sale under the executions issued thereon. This is a clear misapprehension. The plaintiff bought and obtained an assignment of those judgments from the judgment creditors, and if those creditors would have obtained a good title at the execution sale, the plaintiff, their assignee, obtained the same hind of a title. No one would deny the right of a plaintiff in an execution to buy the property sold under the execution, and the assignee of such a plaintiff stands in the shoes of his assignor. [R. S. 1889, secs. 6043-4-5; Burgess v. Cave, 52 Mo. 43.] The plaintiffs in the execution parted with their judgments, but the judgments were' not satisfied, either by the defendant or any one for him, and it is only in case the defendant or some one for bim acquires the judgment that it is treated as paid. The defendant says in his brief that he claims that the plaintiff bought these judgments under a secret arrangement with the debtor, Echas, in order to hinder and delay Echas’ creditors, but there is no such issue tendered by the defendant’s answer, and not one word of testimony in the cáse upon which to predicate such a contention, and therefore no such question can be considered in this case. [Waddell v. Williams, 50 Mo. 1. c. 224.] II. The second error assigned by the defendants is that the sheriff’s sale passed no title to the plaintiff because only twelve days’ notice was given of the sale. This, too, is a misapprehension. It is true as to the subsequently discovered -property there was only twelve — 661 — days’ notice of sale given, but tbe trial court sustained tbe defendant’s objection as to such property and denied the plaintiffs’ title thereto and it was eliminated from tbe petition. Of tbis tbe defendant bas no ground”to complain. As to tbe property affected by tbe plaintiffs’ judgment, there was more than twenty days’ notice of tbe sale given, that is, tbe first publication was on November 27th, tbe second on December 4th, tbe third on December 11th, and tbe fourth on December 18th, and tbe sale was on December 23, 1896, and therefore tbe requirements of section 4941, Eevised Statutes 1889, as to the duty of tbe sheriff in selling real property under execution, were frilly met and complied with. Tbe second notice which covered tbe property described in the notice so legally published and also tbe subsequently discovered property, did not affect tbe validity of tbe first notice at all, for as to tbe property commonly described in both notices, it was only a double notice of intention to sell such property and one of such notices being legally sufficient, it was not waived or in any manner impaired by tbe second insufficient notice. The' second notice can properly only be considered as unnecessarily cumulative. It does not even make tbe first notice an irregularity in tbe sheriff’s proceedings under tbe executions, and it is tbe established rule in tbis State that mere irregularities do not avoid sheriff’s sales. [Young v. Schofield, 132 Mo. 1. c. 668 and cases cited.] III. Tbe third assignment of error is that tbe defendant-bas title based upon bis purchase at tbe execution sale upon tbe “transcript judgments.” The pith of this contention is that tbe transcripts of thirteen judgments of tbe justice of tbe peace were filed in — 662 — the circuit clerk’s office during the September term, 1896, of the circuit court, and therefore they were equal liens with the judgments of the circuit court which were rendered prior to the filing of such transcripts, because they were entered in the circuit clerk’s office at the same term. Sections 6286, 6287, 40.18 and 4019, Revised Statutes 1889, are relied on to support this contention. Section 6286 makes it the duty of a justice to give to the party in whose favor he has rendered a judgment, a certified transcript thereof, and requires the circuit clerk to file such transcript, and enter the judgment on his docket of court judgments. Section 6287, gives to every such judgment “the same lien on the real estate of the defendant in the county as is given to judgments of circuit courts.” Sections 4018 and 4019, Revised Statutes 1889, have no possible bearing upon the questions in hand, as they relate to appeals from justices of the peace in criminal cases. The defendant doubtlessly intended to refer to sections 4018 and 4019, Revised Statutes 1899, which are the same as sections 6286 and 6287, Revised Statutes 1889. Section 6012, Revised Statutes 1889, provides that judgments shall be a lien “after the rendition thereof,” and if two or more judgments are rendered at the same term “as between the parties entitled to such judgments or decrees, the lien shall commence on the last day of the term at which they are rendered;” that is, it is claimed, such justice’s judgments become equal to judgments of the circuit court, when such transcripts are filed and such judgments entered by the circuit clerk in his docket of judgments, and Jordan v. Surghnor, 107 Mo. 1. c. 524, is cited as sustaining this view. Rut conceding that in this way the judgments of the justice of the peace became in legal effect judgments of the circuit court and equal in priority and lien, it will not sustain the defendant’s contention, for it is the settled rule in this State that where two judgments are equal, whether — 663 — embodied in the same decree or in separate decrees entered bv tbe same court at the same term and therefore the liens of both commenced on the last day of the term, under section 6012, R. S. 1889, the holder of one may acquire a priority over the holder of the other by having his execution issued and levied first, on the principle, as stated by Wagner, J., in Bruce v. Vogel, 38 Mo. 1. c. 105, that “he shall enjoy the benefit of his industry.” [Shirley v. Brown, 80 Mo. 1. c. 247.] In no- event could the holder of a judgment of equal lien claim that a sale under a judgment of the same force and lien as his conveyed no title. A sale under either of such judgments carried the title to the purchaser and the holder of the judgment of equal lien would only be entitled to his pro rata share of the proceeds of the sale, but if one sleeps on his rights and the other is diligent (and the case of Bruce v. Vogel, supra, is directly in point) there is no pro rata'distribution of the proceeds, but the diligent creditor is rewarded. So it follows in this case that the purchaser at the sale on December 23, 1896, got a good title to the property sold, by which is meant only that covered by the decree, as against the purchaser at the sale on March 18, 1897, and as the creditors under whose judgments the property was sold on December 23, 1896, were diligent and had their executions issued and levied first, they acquired a priority of claim to the proceeds of the sale over those creditors whose executions were not issued or levied until February, 1897. Or otherwise stated, the title of the plaintiff to the lands as the purchaser at the December sale, and to the proceeds of sale as assignee of the judgment creditors, is superior to the title of the defendant to the lands as purchaser at the February sale, and the defendant is not entitled to share pro rata in the proceeds of the December sale. The judgment of the circuit court is affirmed. All concur.