Bailey v. Buchanan

126 Mo. App. 190 | Mo. Ct. App. | 1907

BLAND, P. J.

(after stating the facts). — The learned counsel for plaintiff recognizes that the doctrine of caveat emptor has always applied to judicial sales in this State, hut insists that the doctrine does not inure to the benefit of defendant in an execution, and contends that as defendant lost nothing by the sheriff’s sale of the lands described in the petition to the plaintiff, and as the plaintiff gained nothing by such sales, equity will decree a cancelation of the |1501 credit on the judgment, and thus put the parties back in the same position they were before the sales were made.

In Magwire v. Marks, 28 Mo. 193, “A recovered a judgment against B. Execution was issued thereon and levied by order of A — he giving the plaintiff an indemnification bond— on certain personal property in possession of B hut known by A to be claimed by C as trustee for the wife of B. The sheriff made sale of the preperty levied on, and the amount made was indorsed on the execution in pro tanto satisfaction thereof. C sued the sheriff and recovered judgment against him for the amount made by said levy and sale, with interest, which was paid by A. Held that A was entitled to have the sheriff’s return vacated and set aside so far as it stated a partial satisfaction of the execution, to have the same amended in accordance with the facts, and to have an execution issue for the whole amount of the judgment.”

In McLean v. Martin, 45 Mo. 393, “A owned certain described land in the northwest quarter of section thirty-five, township sixty, range thirty-six. Under execution against him, the sheriff, by mistake, sold and deeded to B a tract similarily described in the northeast quarter of section twenty-five of the same township and range, to which A had no title. The purchase money was paid, and went to extinguish the judgment against A. Supposing the land to be his, A surrendered it to B, who moved on it and made improvements. After-wards, discovering the misdescription, A regained possession, claimed the land, and refused to refund the purchase money. Held, that the doctrine caveat emptor had no application to such case; that the consideration for the money paid on the excution had failed, B having no title to the land,, and .that an action for the recovery of the money so paid was properly maintainable.”

In Valle’s Heirs v. Fleming’s Heirs, 29 Mo. 152, it was held: “Where land is purchased in good faith at an administrator’s sale, which is void because the requirements of the statute are not pursued, and the purchase money is applied in extinguishment of a mortgage to which such land was subjected in the hands of the owner, the purchaser will be subrogated to the rights of the mortgagee to the extent of the purchase money applied in the extinguishment of the mortgage, and the owner will not be entitled to recover possession until he repays such purchase money.”

Black says: “But if the invalidity of the sale is attributable to the fact that the debtor had no title or interest whatever in the property sold, the more approved doctrine appears to be that, where the creditor himself purchases the property, the judgment is finally and irrevocably satisfied and the law courts have no power to set it aside or grant him relief. But this doctrine, it must be admitted, is opposed by a very respectable body of authorities. And however it may be at law, the courts of equity will relieve a creditor from the consequences of his purchase at such invalid sale.” [Black on Judgments, pp. 1488-9.] In volume 19, p. 151, Ency. of Pleading and Practice, it is said: “Although, as has been seen, there is much conflict upon the question whether the plaintiff, as purchaser, may obtain relief at law, or not, upon the purchase of lands to which the defendant (in execution) had no title, the cases are unanimous in holding that relief may be had in equity.”

In Massie v. McKee, 56 S. W. (Tex. Civ. App.) 119, it was held: “A judgment creditor is entitled to have the sheriff’s return on an execution and entry of satisfaction of a judgment set aside, when the execution is levied on property which is not in fact the property of the judgment debtor, as such levy did not satisfy the debt.” And in Hollon v. Hale, 21 Tex. Civ. App. 194, it was held: “Plaintiff in judgment who purchases the property of another than the defendant at an execution sale thereunder and credits the bid upon the writ, is entitled to have such satisfaction of the judgment set aside upon ascertaining that the defendant had no title although he had notice, of the claim of the owner of the land at the time of the sale.”

In Cowles v. Bacon, 21 Conn. l. c. 462-3, the court said: “The practice has uniformly been in conformity with the principle, that where there is no real, but only an apparent, satisfaction of the execution issued on a judgment, by reason of a mistaken or fruitless levy on lands, debt on judgment, as well as scire facias, may be brought to obtain satisfaction. The course of the authorities on this subject is given in the case of Fish v. Sawyer, 11 Conn. R. 545, in which we understand the court to approve and establish that practice, and to decide, that in all cases, debt on judgment lies where an execution is fruitless, by reason of a mistaken or void levy on land.

And we see no just reason for the limitation of this principle for which the defendant contends, by which it should be held to apply to cases, where as in the present, the plaintiff’s testator, when he caused his execution to be levied, had notice from the records, or otherwise, that the defendant had executed a conveyance of the land levied on, but erroneously supposed that such conveyance was fraudulently made, and was therefore, as to him, void. Such a mistake constitutes no just reason why the defendant should not pay the unsatisfied balance of the debt. The former neither got, nor did the defendant lose, anything, by this mistaken levy. Is the latter to go quit of his obligation, when it has not been discharged, by any mode known to the law, and therefore remains in full force, merely because the former had acted on a mistaken belief that the land levied on belonged to the defendant, and not to the person to whom he had ostensibly conveyed it? Or, is the former to- be thus punished, by a forfeiture of his debt, for the benefit of his debtor, for erroneously supposing, that such conveyance was actually or constructively fraudulent, and as to himself void, and for trying to avoid it? It must, indeed, be some very stubborn rule of law which would be held to produce such an unrighteous result.”

In Scherr v. Himmelmann, 58 Calif. 312, it was held: “Where a party causes an execution to be issued on a judgment, and it is levied on property which turns out not to have belonged to the judgment debtor, such party is entitled to bring an action in equity for the purpose of reviving the original judgment, and setting aside the credit upon the execution.” Other cases in point are Kercheval v. Lamar, 68 Ind. 442; Hannon v. Hilliard, 83 Ind. 362; McLaughlin’s Admrs. v. Daniel, 8 Dana (Ky.) 182; Bentley v. Long, 47 Am. Dec. 523; Bone v. Tyrrell, 113 Mo. l. c. 185.

Plaintiff gained nothing by his purchase of the two parcels of real estate and the defendant lost nothing by their sale on the execution. There are none of the elements of estoppel in the transaction, and no good reason can be given for holding that judgment was pro tan-to satisfied by these sales, and we think the case comes clearly within the equitable doctrine enunciated by the foregoing authorities, and that the plaintiff is entitled to the relief sought, unless, as is insisted by defendant, the plaintiff’s position is such that he cannot hold on to and litigate the title to the one hundred and twenty acres of other lands purchased by him at the execution sales, and at the same time have the remedy he prays for in his petition; that he cannot grab the benefits of " the sale with one hand and thrust aside the burdens with the other. It is a well settled principle of equity jurisprudence, that a party cannot hold on to the benefits of his bargain and at the same time be relieved of its hardships. He must put the other party in statu quo by. giving up all he obtained by the bargain before a court of equity will afford him any relief against its inequities. [City of St. Louis v. Davidson, 102 Mo. 149, 14 S. W. 825; Fehlig v. Busch, 165 Mo. 144, 65 S. W. 542.] The real estate bid in by the plaintiff at the execution sales was not sold in lump. Each piece or parcel was sold separately, and the sale of each piece was therefore a separate and distinct sale, as much so as if the several parcels had been sold on separate executions. For this reason the plaintiff is not required to surrender his title, if any, acquired by his purchase of the one hundred and twenty acres, to entitle him to prosecute this suit. On the agreed statement of facts, we think plaintiff is entitled to the relief prayed for in his petition. The judgment is therefore reversed and the cause remanded, with directions to the circuit court to grant him such relief.

All concur.