Finley v. Barker

| Mo. | Jun 6, 1892

Barclay, J.

This is an action of ejectment for a ■ piece of land in Kansas City, Missouri.

Defendant was the owner of the lot when a judgment was obtained December 28, 1885, against him by a Mr. Lovitt under which it was sold on execution, May 15, 1888. The judgment creditor purchased it for $100, and received the sheriff’s deed therefor.

In August, 1888, the purchaser made a ‘‘ quitclaim” conveyance of the property to plaintiff, who brought this action, September 15, 1888.

The defense goes on the theory that no title passed by the execution sale, because the sheriff, before levying the execution, did not apprise defendant of his right to the exemptions secured him by the laws of Missouri, or appoint appraisers to value and set apart the same. R. S. 1889, sec. 4907, same as sec. 2347, R. S. 1879.

Defendant does not assert that the property is a .homestead, or that it comes within the statutory specifications of absolute exemption. He claims that be had the right to select it as exempt, and to have the opportunity for so doing; in default of which, the levy and sale are invalid.

Without reaching the considerations arising from the later transfer to plaintiff, it will suffice to say that the failure of the levying officer to notify the defendant of his right to select certain property cannot logically impress an exemption upon defendant’s property that, has never been, in fact, selected. Until the selection is made, the property is subject to levy. If the defendant has sustained injury in consequence of the failure to apprise him of his right (as the law prescribes), that injury cannot be taken as a substitute for the selection of the property sold, which the defendant might or might not have made. It may give him some other right of action, but does not constitute a defense to this case.

We approve the views of this subject taken by the St. Louis court of appeals in Alt v. Bank (1880), 9 Mo. App. 91" court="Mo. Ct. App." date_filed="1880-05-18" href="https://app.midpage.ai/document/alt-v-lafayette-bank-8258332?utm_source=webapp" opinion_id="8258332">9 Mo. App. 91.

The foregoing, is the only assignment of error which appears to call for remark; and, finding it. untenable, we all agree to affirm the judgment.