59 Mo. 190 | Mo. | 1875
delivered the opinion of the court.
This was an action of ejectment. The plaintiff claimed title from one Hays and attempted to trace title from Hays back to the United States;, but in the opinion of the court that tried the case he failed in showing title in Hays. Tin’s chain of title is not preserved in the record and no question arises on it, and this court can, of course, give no opinion concerning it.
The plaintiff established a possession in Hays in the year 1866, which, however, was abandoned before the plaintiff purchased under execution and received a sheriff’s deed in 1869. This execution was on a judgment against Hays in 1864.
The plaintiff then proceeded to prove that in 1868, Hays had made a deed of trust to one Self, to secure Burnside, (who was the defendant, Graham’s landlord,) and that under a sale made by Self, Burnside became the purchaser and took possession of the lot.
Upon this evidence the court instructed the jury: 1st. That the sheriff’s deed to James A. Matney for said lot 3 in block 4, vests prima facie all the title of said Hays in and to said lot; and that the deed of trust read in evidence from said Hays to Self, to secure Burnside in the payment of the note therein named of Jan’y 8, 1868, was subject to the lien of the judgment of plaintiff of June 30, 1864; and that the sale under said deed of trust and purchase by Burnside under the sale did not divest plaintiff’s lien and give said Burnside a title superior to that of plaintiff to said lot — provided the jury believe from the evidence that Burnside, at the time of his purchase, knew that plaintiff, Matney, had purchased said lot at sheriff’s sale under his judgment against Hays; 2nd. If the jury believe from the evidence that Burn
Upon these instructions the verdict was for the plaintiff and the only question here is as to their propriety.
These instructions were no doubt designed to assert the familiar doctrine that a defendant in an execution and those acquiring possession under him cannot defeat the recovery of the purchaser at the sheriff’s sale, by setting up an outstanding title.
The instructions entirely ignore the question of Hays’ possession which was a question of fact for the jury. It is conceded that Hays had no title, or at least none was shown, and ifrhe had neither title nor possession, it is not easy to see how a judgment, execution sale and sheriff’s deed would pass any. But the judgment was a lien upon whatever interest Hays had in the lot; and although he had no title, yet if lie was in possession at the date of the judgment, the sale under execution would transfer the possession or the right of possession to the purchaser. How this was in point of fact, does not appear, and the instructions should have been so qualified as to leave this to the jury.
There is no doubt that a pure possession alone will entitle a party to recover in ejectment, where the plaintiff connects himself with that possession. (Smith vs. Lorillard, 10 Johns., 355.) Here the plaintiff does connect himself with that possession, if the judgment under which he bought was a lien on such possession. But if the judgment debtor has no title and no possession either, upon which it can attach, he has no
Judgment reversed and case remanded;
