143 Mo. 519 | Mo. | 1898
This is a statutory action of ejectment for the recovery of forty acres of land in Audrain county. The answer is a general denial. After a trial judgment was rendered in favor of plaintiff for an undivided three fourths of the land, and both plaintiff and defendant have prosecuted appeals to this court.
The testimony in this case for plaintiff shows that one S. P. Nichols owned a house and lot in the town of Centralia worth some $400 or $500, in which he and his wife had been living for the past several years prior to October, 1891. That prior to that date he had become indebted to the plaintiff herein for $700 or $800 on sundry accounts for farming implements sold by plaintiff to him as a retail dealer in such articles. That during that time the defendant owned and occupied a farm near Centralia of one hundred and sixty acres, and also a detached forty acres, which is the land now in controversy. On the twelfth of October, 1891, the defendant sold this forty acres to S. P. Nichols and at the request of said Nichols conveyed the same to Nannie N. Nichols his wife by general warranty deed and accepted a deed from said Nichols and wife to the house and lot in Centralia, claimed by them as a homestead, and upon which for a number of years they had been residing, as part payment for the forty acres, at
Many questions have been raised and discussed in the briefs filed herein as to the correctness of rulings of the trial court in the matter of receiving and rejecting testimony that was offered, of instructions given and refused; and as to the effect of defendant’s warranty deed to Nannie N. Nichols, covenanting against incumbrances on his after-acquired title to the land as purchaser, at the trustee’s sale under the twelve hundred dollar incumbrance that had been created prior to the making of said deed, all of which questions, in the view we take of the case, are unimportant and unnecessary of discussion here.
The defendant was in possession of the land in controversy at the institution of plaintiff’s suit according to the allegations of its petition as well as by its showing of facts, and plaintiff had never been in the possession of the land nor did it show itself to have ever been the holder of the legal title to the land such as would draw to it the right to the possession thereof. Plaintiff merely sought to show that it had, at an execution sale, become the purchaser of the S. P. Nichols interest in the land while the legal title thereof was outstanding in his wife, Nannie N. Nichols.
If, as contended by plaintiff that the said S. P.
While in the action of ejectment the legal title to real estate is not always determined, the action by the express language of the statute can only be maintained by those who are “legally entitled to the possession thereof,” in contradistinction to those holding an equitable claim or right thereto, that may on proper proceedings to that end be made legal so as to authorize an after action of ejectment for possession for such real estate. It is the legal title only that is recognized as the ground of action, and the plaintiff must recover in ejectment, if at all, on the strength of that title, and not on the weakness of that of defendant, or that it has a superior equity to him. Plaintiff’s interest in the land in suit, if it be conceded that S. P. Nichols paid to defendant the entire consideration therefor, was’ still equitable and not legal.
Neither plaintiff nor S. P. Nichols had ever received a legal conveyance to the land from defendant, .as the original owner thereof, nor had there ever been transferred to them, or either of them, the legal title to the premises. The deed made by defendant to Mrs. Nannie N. Nichols was not necessarily void, because the consideration thereof was paid by S. P. Nichols to defendant. The legal title to the land therein named
The doctrine announced in the authorities cited by the respondent herein, to sustain the action of the trial court to the effect “that a deed made in fraud of creditors may be defeated in an action of ejectment by proof of its fraudulent character, by a purchaser at sheriff’s sale,” has no application here, and does not militate against the position asserted by the appellant, that, as the plaintiff is shown never to have been possessed of the legal title to the land in suit, it can not maintain this its action of ejectment. In all the cases cited where the fraudulent deed that has been interposed to defeat the claim of the purchaser at execution sale in his suit by ejectment for the land purchased, hás been ignored by the court, the deed by reason of its fraudulent character has been treated as if never made, and as void from the beginning, thus leaving the title with the fraudulent deed ignored, in the execution defendant, to be passed by the sheriff’s deed at execution sale to the purchaser. But here the defendant was invested with the legal title to the land in controversy up to October 12, 1891, when he conveyed it
On plaintiff’s own showing an outstanding title to the land in suit is found in a party other than itself, however the deed from defendant to Nannie N. Nichols may be considered. The judgment of the trial court is reversed.
Note. — Decided March 8,189s, and rehearing denied April 1,189s.