43 Mo. App. 494 | Mo. Ct. App. | 1891
This is an action for damages for the alleged conversion of a large lot of railroad ties claimed by plaintiff as purchaser at a sheriff’s sale under the order of the Cedar county circuit court, in an attachment case then pending, entitled Elisha Bedwell v. Creed Bedwell. The cause was submitted to-a jury, who, under the court’s instructions, found for defendants, and plaintiff appeals. There is no question that Creed Bedwell was the former owner of the ties in question. He got them out and deposited them in large piles along the line of the defendant, Kansas City, Fort Scott and Memphis Railroad Company, at a station called Donnegan’s Springs, Polk county, Missouri. They were marked with Creed Bedwell’s initials (C. B.) and a cross mark (x), and each pile had his full name marked on one of the lot. While in this situation, Elislia Bed-well began in the Cedar county circuit court an attachment suit against said Creed Bedwell. Certain real estate in Cedar county was levjed upon, and under another writ the sheriff of Polk county seized the
“ Now at this day comes the plaintiff in the above entitled cause by attorney and files his petition asking for an order for the sale of the property heretofore attached in this cause by the sheriff of Polk county. And it appearing to the satisfaction of the court that on the twenty-second day of November, 1887, by virtue of a writ of attachment issued in this cause, directed to the sheriff of Polk county, the said sheriff did attach, as the property of the said Creed H. Bedwell, a large number of railroad ties, marked “C. B. & X,” situated on or close to the line of the Gfulf railroad at Burrell’s Crossing and at Dunnegan’s Springs, and at the crossing between Burrell ’ s Crossing and Dunnegan's Springs, in Polk county, Missouri, and that the said property is likely to perish or depreciate greatly in value during the pendency of the suit; it is, therefore, ordered by the court that the said sheriff of Polk county sell the said property without unnecessary delay at public auction for cash, in the manner required by law for the sale of personal property under executions, and that he report his proceedings and have the proceeds of such sale before the court at the next term.”
Pursuant to this order the sheriff of Polk county made public sale of the ties, and jjlaintiff became the purchaser for the sum of $200 which was paid over to said sheriff and said ties were delivered to plaintiff. There seems no doubt that subsequently these defendants took the ties. They wrere found in the yards of the defendant’s railroad, who refused on demand to deliver them up, and hence plaintiff’s action for the value thereof.
Defendants, as' matter of defense, claim, that, when the ties were thus levied on in the attachment
And at the request of defendants the court instructed the jury: “That if they believe from the evidence that the ties in controversy were placed on the right of way of the railroad for North & Co., and that they paid ’ Bedwell for them, then they became the property of North & Co., and plaintiff cannot recover, unless the jury believe from the evidence that the sheriff of Polk county took actual possession of said ties under the writ of attachment in the case of Bedwell v. Bedwell, and did such acts in connection with such ties as to notify outsiders that the ties were in his possession or under his control.”
The court refused the following, as requested by plaintiff: “7. The court instructs the jury that the attachment and levy of the sheriff oh the ties in question, in the suit of Bedwell v. Bedwell, in the circuit court
“ 9. If the jury believe from the evidence that the circuit. court of Cedar county made the order of sale which has been read in evidence, and that the sheriff of Polk county executed the said order in the manner shown by his return thereto, which has been read in evidence, arid that, at the sale had under said order, the plaintiff herein purchased the property here in controversy, and paid the amount bid therefor to said sheriff, and that said sheriff thereupon- delivered the said property to the plaintiff, then the sale so made to the plaintiff vested in him the title and ownership of the property, and the verdict of the jury should accordingly be in his favor.”
I. The question presented for decision here is this : Can the title of a purchaser of attached personal property, sold under the court’s order as perishable, be assailed in a collateral action., on the ground that the defendant in the attachment proceedings was not the owner at the date of the levy, — or on the ground that such property was not in fact levied on, — although so shown by the sheriff’s return, and so found and declared by the court having jurisdiction of the attachment proceedings ? In our opinion, this query must bo answered in the negative, and we are sustained by the following authorities : Freeman v. Thompson, 53 Mo. 183; Kane v. McCown, 55 Mo. 181; Rumfelt v. O'Brien, 57 Mo. 569; Brawley v. Ranney, 67 Mo. 280; Johnson v. Beasley, 65 Mo. 251; Yeoman v. Younger, 83 Mo. 424; Decker v. Armstrong, 87 Mo. 316; Freeman on Judgments, sec. 130, et sef.
In Decker v. Armstrong, supra, p. 319, “where attached property is sold under an order of court, because of its perishable nature, the purchaser takes the title good against the world.” Young v. Kellar, 94 Mo. 581. It is there said (p. 599): “The right to change the form of the attached property into a different form, and to subject it, in its changed form to the lien of the attachment, must bear with it, as a necessary coincident, the right to give validity to the title arising from the sale, which brings about such an exchange of property.” It follows then from the foregoing principles of law, that the court erroneously admitted the evidence tending to disprove Bedwell’s title, as well as the evidence tending to disprove a valid levy. Erred, too, in giving the instructions quqted in statement of the case, and erred in refusing plaintiff’s instructions, numbered 7 and 9.
III. Further contention is made that the order for sale of the attached property (in Bedwell v. Bedwell) was made after the death of the plaintiff in that action, and before the cause was fully revived. It seems that the action was commenced in November, 1887, and was returnable to the March term, 1888, of the Cedar county circuit court. After the institution of the suit and before the said March term, the plaintiff died, whereupon, on a suggestion made, the court ordered the said action to be revived and continued in name of the plaintiff ’s executor, unless the defendant in the proper time shows sufficient cause against such revivor, etc. Then following this, and at the same time, the court on the petition of the said executor made the order for the sale of the attached property. It seems to be defendant’s contention that this order of sale could not legally be made until the time for showing cause against the revivor of the action had expired. In the first place this point may be answered, -as in last paragraph, that defendants in this suit cannot complain of mere errors or irregularities in the other case. However, we are of
We have considered all the questions raised in counsel’s .briefs, and have, in this opinion, expressed our views on such as deserve mention. The judgment of the circuit court will be reversed, and the cause remanded for a new trial.