88 Mo. App. 54 | Mo. Ct. App. | 1901
In August, 1897, appellant recovered a judgment for $227.58 against William and Nancy Berkley, before a justice of the peace in Lincoln county. An execution was issued on the judgment by the justice and delivered to the
“Now comes the plaintiff in the above entitled cause and for denial says it is not true, as stated in garnishee’s answer to interrogatory No. 1, that, at the time of the service of garnishment upon him, he did not have in his possession or under his control any property, money or effects of defendants, or either of them. And says further, that it is not true, as stated in answer to second interrogatory, that at the time of service of garnishment upon him, he did not owe the defendants any money or does not owe them any now. And for further denial to said answers," the plaintiff says that, at the time of service of garnishment upon said garnishee, he had just sold as trustee, under a certain deed of trust made by said defendants, William and N. T. Berkley, certain real estate belonging to them, for the'price and sum of $16,100 for the payment of a certain note and cost of such sale, aggregating $8,500, and that after paying and satisfying the debt for which said property was sold there remained a surplus of $6,600 belonging to defendants on said execution, subject to the payment of plaintiff’s judgment and which said surplus of $6,600 came into the hands and possession of said defendant garnishee, or should have done so, under the terms and conditions of the deed of trust under which said sale was made, and that said defendant garnishee has the same now, or should have the same, in his possession and control, and that said garnishee has not paid said sum or any part thereof to de*57 fendants in said execution. And further denying, plaintiff says that, upon the sale of said real estate by said defendant garnishee as trustee, it became the duty of said garnishee to collect the proceeds of said sale, and that if he did not do so it was by reason of his own neglect or fraud entered into with said defendants for the purpose of hindering, delaying and defrauding the creditors of said defendants in said execution, and that by reason thereof he is liable to this plaintiff for the amount of plaintiff’s debt and judgment.”
The cause was taken to the circuit court by appeal from a judgment by the justice against the garnishee. In the circuit court, on a trial de novo, the issues were submitted to the court, without the intervention of a jury. The issues were found for the garnishee. No instructions or declarations of law were asked or given, nor did the court make a finding of the facts.
The sole question presented by the record is, whether or not the appellant’s evidence shows prima facie that he had a right to recover. State ex rel. v. Goetz, 131 Mo. 675; Finch v. Ulman, 103 Mo. 255. The evidence adduced by appellant was that William and Nancy Berkley owned 681 acres of land in Lincoln county, Missouri, on which they had, prior to the rendition of the justice’s judgment, executed a deed of trust to secure their promissory note for $7,500, which they failed to pay at maturity. That Hall (the trustee in the deed of trust) refused to act and that Sydnor, as sheriff of Lincoln county, at the request of the beneficiary, sold the land under the deed of trust according to the provisions thereof. That at the sale (made on September 4,1897), Charles Berkley bought the land for $16,000 and received the trustee’s deed. That the constable was present at the sale with the execution issued by the justice and that within two minutes after tire land was sold to Charles Berkley, he garnished Sydnor. The deed of trust pro
For the reason that appellant did not adduce evidence that the surplus had not been paid out for insurance, taxes or redemption from tax sale or to protect the title or possession of the premises, the learned trial judge sustained a demurrer to his evidence. No presumption arises that payments for any of those purposes were made or necessary to be made, from the mere fact that the deed of trust provided that they might be-made, if the beneficiary, to protect his interest should at any time before foreclosure, make such payments. The appellant’s proof affirmatively showed that the garnishee' had a large over-
Our conclusion is that the learned circuit judge committed error in the giving of an instruction in the nature of a demurrer to appellant’s evidence, for which error the judgment is reversed and the cause remanded.