49 Mo. 202 | Mo. | 1872
delivered the opinion of the court.
This was an action of ejectment for lands in Lafayette county, brought by respondents, as purchasers at execution sale, against the appellant, Alfred Jones, defendant in the judgment and execution under which the sale was made. Thomas Jones was, after the commencement of the suit, on his own application, made a co-defendant. The answer denied the respondents’ right to the possession, etc. The respondents, to maintain their right to the possession, produced a sheriff’s deed, the recitals of which show that at the May term, 1864, several judgments had been rendered in the Lafayette Circuit Court against Alfred Jones, and that executions issued on these judgments, and were put into the hands of the then sheriff, Price, who levied the same on the lands in dispute, and, before any sale, delivered the said executions to his successor, Adamson, who sold the lands under those executions at the November term, 1865 — that being the first term at which a sale could be made — having given due notice of such sale and the respondents became the purchasers.
When this deed was offered as evidence the defendants objected, alleging as reasons for its exclusion, “ that the sale was not made upon proper notice, nor by the proper officer, nor upon a
The respondents introduced several witnesses who testified that the appellant Jones, for several years before the judgments, was in the actual possession of the premises, residing there, and continued in such actual possession down to the time of the trial, being then as before in actual possession. And on the part of the appellants, Alfred Jones testified that his son Thomas Jones took possession of the premises in the year 1865, cultivated the farm that year, hiring two hands to work for him, and disposed of all the proceeds of the crop; that he, Alfred Jones, resided with him, but was at home very little; was absent most of the time trading in stock at St. Louis and other places, and that his son Thomas, in the latter part of the year 1865, removed to Louisiana, requesting him, Alfred Jones, to hold possession for him, Thomas Jones, which he said he did by the acquiescence and consent of McGirk, the trustee under a deed of trust made by the said Alfred Jones and others, creditors of said Alfred Jones, and that he held possession in this way until the time of bringing this suit.
It is evident from this testimony that there was in reality no change of possession. Alfred Jones continued in possession as he had done before, or if Thomag Jones had any possession at all it was obtained from Alfred Jones.
The appellant offered in evidence the deed of trust above referred to, and also a deed which wa's made by the trustee, McGirk, to Thomas Jones, as purchaser under the deed of trust, this last deed being made after the commencement of this suit. These deeds were excluded by the court, and appellants excepted.
We see no objection to the sheriff’s deed. (See Stewart v. Severance et al., 43 Mo. 322.) It certainly passed all the title the defendant in the execution had at the time of the rendition of the judgments. Alfred Jones had no right to show an outstanding title to defeat the recovery of these lands by the purchasers at execution sale, and his son Thomas Jones, who obtained possession, if any, from him, was in the same condition. If he wished to assert his title he must first yield up the possession
It is against the policy of the law to allow an execution purchaser to be deprived of his rights by such a defense as was set up in this case. (See Page v. Hill, 11 Mo. 149.)
The judgment of the Circuit Court is affirmed.
