126 Mo. App. 593 | Mo. Ct. App. | 1907
Injunction to restrain defendants from selling and conveying certain lands under execution issued on a judgment recovered by defendant Bank against the mother of plaintiff.
A statement of facts sufficient for present purposes appears in the following portion of the final judgment: “That the defendant, The Daviess County Savings Association, is a corporation duly organized and incorporated according to law and the defendant, R. D. McCray, is the duly elected and qualified sheriff of Daviess
That prior to the year 1866 said land was owned by plaintiff’s father, Francis W. Payne; that during said year 1866 said Francis W. Payne died owning the same, the head of a family, consisting of his wife, Elizabeth Payne, and two sons, Jacob Payne and George H. Payne, this plaintiff; that at the time of his death.he lived on said land with his said family as a homestead and died thereon; that the land owned by said Francis W. Payne and upon which he died was less than 160 acres in extent and of less value than $1,500; that under the law then in force the widow became at his death the owner of said land in fee simple; that thereafter a pretended petition proceeding was had between the widow and heirs of said deceased whereby the land in suit was allotted to said Jacob and George H. Payne and other of said land of which said deceased died seized was set off to said widow as a dower; that said Jacob Payne conveyed to plaintiff his interest in said land and that plaintiff entered into possession thereof with the knowledge and consent of said widow and has had open, notorious and continuous and hostile possession thereof, with the knowledge of said widow for a period of twenty-five years and that his title thereto has ripened into a fee simple title by limitation; that said widow after the death of said Francis W. Payne married one —- Eobertson and is now Elizabeth Eobertson; that on November 7, 1901, the defendant, The Daviess County Savings Association, recovered judgment before S. P. Cox, a justice of the peace within and for Union township,
The court further finds that a sale of said lands by defendants under said execution would cast a cloud upon the title of plaintiff to said land; that the sheriff’s deed issued under said sale would constitute a cloud upon said title and would be a menace thereto and that the legal acumen would be required to determine whether the plaintiff or the purchaser of such sale would hold the paramount title to said land, and that by the making of such sale and execution of said sheriff’s deed thereunder the plaintiff would suffer irreparable injury and that he has no adequate remedy at law.”
On these findings, the court made perpetual the injunction restraining defendants from proceeding with the sale of the land under the judgment recovered by defendant association against Elizabeth Robertson. Defendants’ motion for a new trial and in arrest of judg
Defendants rely for a reversal of the judgment on the proposition that “injunction will not lie to restrain the sale of land where plaintiff is in possession of the land and where his legal record title is superior to any title that can be acquired by a purchaser at the sale, and where plaintiff has a complete and adequate remedy at law against any claims that may be asserted by such purchaser.” [Citing Wilcox v. Walker, 94 Mo. 89; Haeussler v. Thomas, 4 Mo. App. 463; Drake v. Jones, 27 Mo. 429; Kuhn v. McNeil, 47 Mo. 389; Witthaus v. Bank, 18 Mo. App. 181; Clark v. Ins. Co., 52 Mo. 273; Russell v. Lumber Co., 112 Mo. 41.] At the times of these respective decisions, the statute applicable to cases of this character provided that “The remedy by writ of injunction or prohibition shall exist in all causes where an irreparable injnry to real or personal property is threatened, and to prevent the doing of any legal wrong whatever, whenever, in the opinion of the court, an adequate remedy cannot be afforded by an action for damages. [Rev. Stat. 1889, section 5510.]
In the revision of 1899, the section was amended to read: “The remedy by writ of injunction or prohibition shall exist in all cases where a cloud would be put on the title of real estate being sold under an execution against a person, partnership or corporation having no interest in such real estate subject to execution at the time of the sale, or an irreparable injury to real or personal property is threatened, and to prevent the doing of any legal wrong whatever whenever in the opinion of the court an
As what we have said sufficiently disposes of the case, there is no need to discuss the “legal acumen doctrine” so earnestly pressed on our attention by the learned counsel for plaintiff.
The judgment is affirmed.