61 Mo. 225 | Mo. | 1875
delivered the opinion of the court.
This is a bill in equity to cancel a deed made by the sheriff of Franklin county to the defendant (Drace) for a lot in the town of Sullivan, in said county, which deed the plaintiff alleges is a cloud upon his title; and also to enjoin the defend
The petition alleges in substance, that on the 29th day of October, 1863, J. 0. McCallister, James F. McKindrick and the plaintiff (Joseph Crow) were partners doing business as merchants in said town of SulMvan, under the name and style of McCallister & Co.; that on said day they purchased from one Solf with the money of the firm, and for the use of the firm, the property in controversy, but that the title thereto was taken by McCallister, who negotiated the purchase in his own name; that in the month of October, 1869, said MeCallister absconded, taking with him a large portion of the firm assets, and leaving the firm greatly involved; that said firm was thereupon dissolved, and its business and affairs were duly settled in the Franklin circuit court, and that on the 13th of October, 1870, Allen P. Richardson, Esq., acting under the authority of said court as receiver in said proceedings, and with the approval of the court, sold and conveyed to the plaintiff the lot in controversy, of all which defendant (Drace) had notice; that soon after McCallister absconded, the defendant (Drace) instituted a suit against him by attachment based on an individual indebtedness of said McCallister to him, obtained judgment in said suit, and purchased at an execution sale thereunder, on the 13th of October, 1870, the said lot, received a deed for the same from the sheriff and instituted an action of ejéctment against the plaintiff (Crow), based upon said sheriff’s deed, to .recover the possession of said lot, and prayed the relief heretofore stated.
The defendant in his answer, admitted the institution of the proceeding by attachment, his purchase at the execution sale, the institution of the action of ejectment, and that the title to the lot was in the name of McCallister, but denied all other allegations of the petition.
At the hearing a decree was entered for the plaintiff as prayed.
The grounds relied upon by the plaintiff in error to reverse this decree are —first, that it does not appear from the testi
But he-could not acquire the right to be considered a Iona .fide purchaser by reason of being a judgment creditor without notice. (Hart vs. Mechanic’s Bank, 33 Vt., 252; 2 Sto. Eq., § 1503 5.) If at the time of the sale under his judgment lie had notice of the firm’s rights or of the plaintiff’s claim, he is not entitled to assume the character of an innocent purchaser through any fiction of relation, and we think the testimony is amply sufficient to charge him with notice. (Black vs. Long, 60 Mo., 181, and, cases cited.)
Whatever interest MeCallister had in the property at the time of the levy of' the attachment passed to the defendant (Drace) by virtue of the execution sale, but McCallister’s interest was of course subject to the payment of the partnership debts, and as appears from the record was, with all other assets of the firm, entirely consumed in discharging those debts.
We are of opinion, therefore, that the judgment of the circuit court should be affirmed, and judgment will be entered accordingly.