47 Mo. 356 | Mo. | 1871
delivered the opinion of the court.
This was an action of ejectment instituted by the plaintiff in the Balls County Circuit Court against the defendant Briggs, who was in possession of the land; and, on motion, McPike, who claimed to own the same, was made a co-defendant. It is admitted that both parties claim to derive title from Briggs as the common source. The plaintiff’s claim originates in a deed from the sheriff of Balls county, in which are recited several executions under which the sales were made. The judgments whence the executions were issued were all rendered in March, 1862, except one in favor of Bice, which was rendered in August, 1859, and one in favor of Proctor, rendered in August, 1860. The Bice judgment Ayas against B. M. Briggs, the defendant, alone. The other judgments Avere all against B. M. Briggs and J. C. Briggs, and some of the judgments rendered in 1862 AYere against them in conjunction AYith other parties.
The defendant McPike claims title under a deed of trust Avhich was executed by B. M. Briggs to Balls as trustee, in January, 1861, and recorded in March, 1861. He also claims by virtue of a purchase under execution, on a judgment against B.VM. Briggs for a part of the purchase money of the land, in favor
The first objection urged by the appellant against the ruling o£ the court below is that it was incompetent to introduce parol evidence to vary or contradict the recitals of the sheriff’s deed. The deed recites that the lands of both B. M. Briggs and John C. Briggs were set up and sold to satisfy the executions, but there is nothing to show which was sold first in the order of time.
It appears that the land of John C. Briggs brought upward of $7,000, and that, after satisfying the Proctor judgment, there wras more than $5,000 left to be distributed on the junior judgment. As the lands of both the Briggs’s were liable for the judgment of Proctor, it is material to the rights of the parties to know which land was first sold.
If Proctor’s judgment was paid off and satisfied with the proceeds of the sale arising from J. C. Briggs’ land, then the purchase by McPike of the land of B. M. Briggs, under the deed of trust, vested in him a good title, as the trust deed constituted a prior lien over all the judgments.
To show that the lands of J. C. Briggs were first sold by the sheriff, the sheriff himself and several other witnesses who attended the sale were permitted to testify, and they state unequivocally that such was the fact. There was also some evidence tending to show the contrary, but the fact was for the jury. The only question for this court to decide is whether the evidence was admissible.
The counsel for the appellant has referred us to several cases in the New York Reports, which seem to sustain the position assumed by him as to the inadmissibility of the testimony.
The case of Jackson v. Roberts, 7 Wend. 83, which purports
In Carver v. Jackson, 4 Pet. 1, it is laid down generally, that a recital of one deed in another binds the parties and those who claim under them. Technically speaking, it operates as an estoppel and binds parties and privies — privies in blood, privies in estate, and privies in law. But it does not bind either strangers or those who claim by title paramount to the deed. It does not bind persons claiming by an adverse title, or persons claiming from the parties by title anterior to the date of the reciting deed. This principle was re-asserted in Crane v. Lessee of Morris, 6 Pet. 598, and it was said that the general rule was that a recital of one deed in another bound the parties and those who claimed under them by matters subsequent.
In the case of Penrose v. Griffith, 4 Binn. 231, it is laid down that a deed containing a recital of another deed is evidence of the recited deed, against the grantor and all persons claiming by title derived from him subsequently. But it is not evidence against one who claims from him by title prior to the deed which contains the recital, nor is it evidence against a stranger. It was there
The grantor in a deed is considered as having acknowledged under seal and in writing the existence of the matters which he recites, and he is estopped from denying so solemn an admission. Hence it can be evidence only against himself and against those who affirm and sanction his admission by claiming under the deed which contains it. It can not be evidence against strangers or against those whose claim is adverse.
The language of Judge Edmonds seems to me to be the correct doctrine. He says : ‘ ‘ I have, then, arrived at this conclusion upon the just exception that it would be highly dangerous to the rights of property to permit the recital in a sheriff’s deed to be conclusive evidence against all the world o£ the facts contained in it; that such recital is an admission of the parties to the instrument, and, as such, binding only on those parties and others claiming under it; that the recital is a necessary part of the deed only so far as it is a statement of the authority under which the sheriff acted in selling ; that that authority is a matter resting in pais ; and that whether he did or did not sell under an execution is matter to be proved by evidence out of the deed,’and maybe disproved by such evidence.”
If a judgment be satisfied, the power to sell under it ceases ; and should a sale take place under it, the purchaser will acquire no title. (Weston v. Clark, 37 Mo. 568; Wood v. Calvin, 2 Hill, 566; Jackson v. Anderson, 4 Wend. 474; Sherman v. Boyce, 15 Johns. 543; Jackson v. Caldwell, 1 Cow. 622; Hammatt v. Wyman, 9 Mass. 138; King v. Goodwin, 16 Mass. 63.)
When property enough is sold to satisfy the oldest execution, there is nothing to justify the officer in selling more under it. When the sheriff has but one execution in his hands, there can be no doubt that it is satisfied the instant that he has raised enough to pay it. After he has sold enough to satisfy the execution, he can not still go on and sell more of the defendant’s property. When the sheriff sold sufficient of the J. C. Briggs
When an execution has performed its office by extracting full satisfaction from a portion of the debtor’s property, it can not have sufficient life and vigor left to deprive him of the residue and transfer the title from him to another. I think it may be stated aS the safest rule that where it appears on the face of the deed or is shown by proof aliunde that certain of the premises were sold by virtue of one or more executions, after such executions were satisfied by the sale of other property, the deed as to such premises so subsequently sold is void and inoperative. As to the first point, therefore, I think the court committed no error; and as -this is decisive of the case, it becomes immaterial to inquire whether McPike strengthened his title by buying in the premises when they were sold to satisfy the vendor’s lien. Martin, who brought the suit to enforce the lien, was the assignee of Ely, who sold the land to B. M. Briggs. And it is doubtful whether the assignee of a note given for the purchase money acquires by such assignment the lien which the vendor himself had. There is a conflict in the authorities on this question, and the case does not require that we should express any opinion upon it. But when Ely sold the land to B. M. Briggs he took the latter’s notes, with personal security for the balance of the purchase money due; and it is the settled law in this State that where the vendor sells land and takes collateral security for the purchase money, he will be considered as waiving his lien upon the land conveyed. (Delassus v. Porter, 19 Mo. 425; Sullivan v. Ferguson, 40 Mo. 79.) The taking of collateral security may not be conclusive evidence of a waiver of the lien; but if the vendor entertained a different intiftit, he must show it by satisfactory testimony. The court instructed in "favor of the lien, without any evidence being introduced of the intention of the vendor to retain the same, and in this it erred.
It is contended here by the.counsel for the respondent that the lien had ceased to exist as to the Rice judgment, which was only $42.38. But this was not the point raised, nor the theory on which the case was tried in the court below.
This instruction was unobjectionable and conformed to the law as previously announced in this opinion. Although the court erred in its instruction as to the vendor’s lien, because there was no evidence submitted to the jury on which to base the instruction, still the other questions are decisive and lead to an affirmance.
Judgment affirmed.