78 Mo. App. 630 | Mo. Ct. App. | 1899
This is a proceeding in equity to set aside a judgment and to enjoin the sheriff from selling certain land which had been levied upon under an execution issued on the judgment. The plaintiff in the judgment and the sheriff were made defendants. The court overruled a general demurrer to the petition. The defendants refused to plead further; thereupon the circuit court upon the eAddence adduced by
The equitable intervention of the court is invoked here upon two grounds which are well settled by the decisions in this state and elsewhere. The first is that where a judgment at law has been obtained by fraud or mistake, a court of equity will interfere and set aside the judgment, provided the defendant in the judgment has not been negligent in availing himself of the legal remedies that may have been open to him. (State ex rel. Phelan v. Engelmann, 86 Mo. 551; Bresnehan v. Price, 57 Mo. 422.) Secondly, the sale of land will be enjoined at the suit of the owner where the person sought to be enjoined has the apparent right to sell the land and thereby create a record title which upon the face of it would be superior to that of the complainant, and where the matters showing that such person has no such right are clehors the record. Bank of Tipton v. Davidson, 40 Mo. App. 421; Mason v. Black, 87 Mo. 329; Harrington v. Utterback, 57 Mo. 519; Clark v. Ins. Co., 52 Mo. 272; Merchants Bank v. Evans, 51 Mo. 335; Volger v. Montgomery, 54 Mo. 577; Skinker v. Heman, 64 Mo. App. 444.
The following matters are substantially averred in the petition. The defendant Taylor sued the plaintiff here before a justice of the peace to recover the possession of a written contract. During the pendency of the suit the plaintiff retained possession of the paper. At the conclusion of the trial the justice announced that the judgment was for Taylor and that the damage for the detention of the paper was five dollars. Nothing was said by the justice as to the value of the property. Plaintiff then left the office of the justice believing that a full and complete judgment had been announced, and with the intention of satisfying it. Afterward the justice, without notice to plaintiff, assessed the value of the paper at $200, and rendered judgment accordingly. After the time for taking an appeal had passed
Objection is made that the petition fails to aver that the land levied upon was not the homestead of the plaintiff. In the cases of Harrington v. Utterback and Volger v. Montgomery, supra, the supreme court held that a court of equity would enjoin the sale of homestead. This is done to prevent a cloud from being cast on the title of the homesteader.
Objection is also made that it is not averred that the plaintiff was the owner of the land'. The allegation is that the land was levied upon as the property of the plaintiff. It will' be presumed that the plaintiff had some interest in the land or Taylor would not have incurred the expense of having it advertised under the execution.
"We therefore conclude that the demurrer was properly overruled, and that the decree was justified by the averments in the bill. The judgment will be affirmed.
