Cook v. Dinsmore

5 Ohio C.C. 385 | Oh. Circ. Ct. | 1891

Beer, J.

It is objected against the validity of the judgment that the transcript shows it was taken by default, and the return upon the docket does not show that the amount claimed to be due was indorsed thereon.

There are two answers to this.

1. Section 594 only requires the justice to record on his docket the date of the writ and the time of its return. He is not required to copy the whole return. In the absence, of the writ, we will presume it was properly indorsed.

2. The summons was served, and the justice thereby acquired jurisdiction of the persons of the defendants. The justice then had jurisdiction to proceed, and if the judgment was improperly taken it was only error or irregularity, and hence not void, but only voidable, and the parties by not objecting within the time prescribed by law waived the error or irregularities. Sheldon v. Newton, 3 Ohio St. 494, 499.

It is next argued that the alleged levy by the sheriff of Putnam county -was so irregular, and the return so defective that the judgment creditor acquired no lien.

The execution itself is lost.

The execution docket of the Court of Common Pleas of Allen County shows the following:

" Execution to Putnam county, March 10,1886. Returned .indorsed: "Received this writ, March 11, A. D. 1886, at 8 o’clock A. M., and. on the same day levied on the following real estate, to-wit: Inlot number 32 in the town of Columbus Grove, Putnam county, Ohio; then returned this writ this day. "Fees, $1.50. Peter Wanamaker, Sheriff.”

There is no indorsement of "no goods” in the return. Hence, it is claimed the officer took nothing by the levy.

Sec. 5383, reads : “ The officer to whom a writ of execution is delivered, shall proceed, immediately, to levy the same upon the goods and chattels of the debtor; but if no goods and chattels can be found, the officer shall endorse on the execution the words " no goods,” and forthwith levy the same upon the lands and tenements of the debtor which are liable to satisfy the judgment.”

Is it the indorsement of " no goods,” or the fact that no goods and chattels can be found, which justifies a levy on lands and tenements'?

The officer is bound to make a levy if he can find property of ‘the debtor within his county; goods and chattels first, and if no goods and chattels can be found,Jthen he must levy upon lands and tenements. Such is the command of the writ. Section 5381.

A levy will not be set aside for a mere mistake of the officer in making his indorsement on the execution. That a defect in the return may be supplied by parol evidence is unquestionable.

It has been permitted in this state repeatedly.

In this case, it is shown beyond question that the officer made search for good and chattels, and found none; and further, that the judgment debtor had no goods and chattels in this county.

Section 1212, reads : “ There shall be kept in the office of the sheriff of each county a foreign execution docket, to be furnished at the cost of the county, in which docket the sheriff shall, on receipt by him of any execution, order of sale or other process issuing from any court of any county of the state, other than that in which he resides, make an entry of that date of such writ, when received by him, from what court and county issued, the date and amount of judgment or decree; also, copy in such book the full description of the property and real estate which he levies upon or offers for sale, the same as is indorsed upon or contained in such writ; also, copy into such book his return on such writ, when he makes the same, * * * and shall make a direct and reverse index of each case so entered ; and such entries so made shall be notice to subsequent purchasers and creditors of the matters contained therein.”

The entry of the sheriff on his foreign execution docket fulfills every requirement of section 1212, and hence is notice to subsequent purchasers and creditors of the matters contained therein.

As the entry contains all the law requires, the levy is good as against them.

If the return to the clerk in Allen county is defective, the execution debtor only could ask to have the levy set aside; and plainly, he is not prejudiced by the failure to indorse “ no goods ” if it be conceded that the officer made no such indorsement, for he had “no goods”; and the law will make the indorsement, if any one, in a regular way, should undertake to have the levy set aside.

We conclude, therefore, that the levy is binding upon the subsequent purchasers and creditors.

It is next claimed that the plaintiffs have no lien, because they have not followed up their levy with diligence.

Section 5375, reads: “Such lands and tenements within the county where the judgment is entered, shall be bound for satisfaction thereof from the first day of the term at which judgment is rendered; but judgments by confession and judgments rendered at the same term at which the action is commenced, shall bind such lands only from the day on which such judgments are rendered; and all other lands, as well as goods and chattels of the debtor, shall bo bound from the time they are seized in execution.”

Section 5380 reads : “If execution on a judgment rendered in any court of record in this state, or a transcript of which has been filed as provided in section fifty-three hundred and seventy-seven, be not sued out within five years from the date of the judgment, or if five years intervene between the date of the last execution issued on such judgment and the time of suing out another execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.”

Five years did not intervene between the date of the execution and the commencemant of the action. As said by Judge Longworth, in Morgan v. Kinney, 38 Ohio St. 614, “from the time that a valid levy is made the land is in legal sense seized in execution, — that is, rendered liable for its satisfaction.”

The next question to be determined is the priority of the liens.

, Mrs. Pletcher bought by quit-claim deed, and by the narrowest kind of a quit-claim deed. The grantor simply conveys his legal estate. 'Dinsmore and Elliott held by the same title, —their rights rise no higher than hers.

In the well considered case of Johnson v. Williams, 37 Kan. 179, found in 1 Am. State Rep. 247, it is decided that “ a person who holds real estate by virtue of a quit-claim deed only, from his immediate grantor, whether he is a purchaser or not, is not a bona fide purchaser with respect to outstanding and adverse equities and interests shown by the records, or which are discoverable by the exercise of reasonable diligence in making proper examinations and inquiries.”

There is good reason for this conclusion. Where there are outstanding and adverse equities, the grantor must be presumed to make a quit-claim deed because he knows of them, and because he does not wish to bind himself to defend against them by making a deed containing covenants of warranty. The grantee will be presumed to accept a quit-claim deed under such circumstances because he has knowledge of the outstanding equities. Grantor and grantee will be presumed to have fixed the purchase price in view of the uncertainty of the title.

Gable & Pavmenter and Bailey & Bailey, for plaintiffs. Sheets,& Ogan, Sutton & Thomas and A. V. Watts, for defendants.

Mrs. Pletcher and Elliott claim that under section 5411, and in equity, the lien of Deford was assigned to them by reason of the defect in the title conveyed at the judicial sale. No such right or equity is conveyed in the quit-claim deed of Roberts to Pletcher, and there is no evidence that she paid full value for the property, but the presumption is she paid for the defective title conveyed to her.

The court find the equities of the case for the plaintiffs.

There is due them on their judgment, and their judgment for costs, $--.

Decree that unless the same be paid within ten days, the premises be sold and the proceeds distributed as follows:

1. The judgment for plaintiffs and their judgment for costs.

2. The costs of this action.

The mortgage of Dinsmore to be reduced and cancelled to the extent of the foregoing.

If there be not sufficient of the proceeds to pay the costs,, then that Huida Pletcher pay the same.

Balance, if any remain, to be paid to Dinsmore.