Chance v. Norris

143 Mo. 235 | Mo. | 1898

G-antt, P. J.

This is an action of ejectment for two lots, eleveh and twelve, in block 5 in the original town of Oentralia, Boone county. The petition is in the usual statutory form. The answer is a general denial, and defendant further states that long prior to June 15, 1894, defendant purchased said property from Gr. E. Shock for value received, and the same was conveyed to her by warranty deed, which deed was put of record on the same date, and defendant has' been in possession ever since. Defendant further answering, says that at the time she bought said lots, and long prior thereto they were, under the exemption statute of the State, exempt from execution and sale for the debts of said Shock, he being then, as now, the head of a family, and that the execution sale and attempted conveyance of said lots by sheriff’s deed to plaintiff passed no title to said lots, and that defendant is the legal owner and entitled to possession of same. The reply was a general denial. There was judgment for plaintiff, and defendant appeals. No instructions were asked or given. No exceptions to evidence were taken or saved.

The evidence disclosed that oneGk E. Shock became the owner’of the lots in suit by deed from J. M. Shock dated November 1, 1883, and recorded November 3, 1883. That on April 22, 1892, J. A. Chance obtained judgment against said Gk E. Shock in a justice court. That execution issued returnable in ninety days and was duly returned July 22, 1892, “no property found in Boone county whereof to make levy of said writ.” That a transcript of the judgment duly certified was filed for record in the clerk’s office and recorded February 2, 1894. That Gk E. Shock and wife conveyed said lots to defendant by deed dated and recorded March 19, 1894. That on May 11, 1894, an execution duly issued from the office of circuit clerk of Boone county, these lots levied upon and sold to satisfy the judgment. Neither at the time of the levy nor the day of sale did Shock select these lots as exempt. The defendant does not plead,that Shock made any claim of exemption at the time of the levy or that the officer failed to notify him of his rights. The theory of the defendant is that the lots were exempt simply because Shock owned no other property when he sold them to her and they were worth only $150, less than the exemptions secured to him by our statutes. R. S. 1889, see. 4907. No claim of homestead or other specific exemption is asserted.

It is settled law in this State that a sheriff’s deed can not be set aside on the ground that property might have been exempted if it had been claimed, but was not; nor because the officer failed to notify defendant of his exemptions. Paddock v. Lance, 94 Mo. 283; Finley v. Barker, 110 Mo. 408. In this case the debtor had no interest in the property at the time of the levy and sale. The judgment was unquestionably for the right party and is affirmed.

Burgess and Sherwood, JJ., concur.