| Mo. | Mar 15, 1866
delivered the opinion of the court.
Roth parties claim title under the same person, from whom the- possession is admitted to have been derived.
The plaintiff claims under a sheriff’s sale and deed under an older judgment, the lien of which had expired, by virtue of an execution levied within five years from the date of the judgment. The defendant claims by virtue of a prior sheriff’s sale and deed, under an execution issued upon a junior judgment, which was a lien unless the same had been extinguished by satisfaction prior to the issuing of the execution. The plaintiff put in evidence his own title papers, and also the judgment, assignment thereof, execution and sheriff’s deed, under which the defendant claimed; and then, for
The material questions presented by the instructions, are, first, whether this evidence of payment should have been excluded when offered ; and, second, if not, whether it amount
As to the first question, we do not see any ground on which the objection can rest. There was perhaps no necessity that the plaintiff should have introduced these documents at that time, but there was no impropriety in his doing so, for the purpose of showing by virtue of what claim of title or right the defendant had entered into possession, or how he had been put in possession, and that his possession was derived from the common ancestor and under his sheriff’s deed. The judgment was admissible, to show the character of the possession — 1 Greenl. Ev. § 539. The plaintiff stood on his prior right of possession, and it was proper for him to show that the defendant had acquired the actual possession by means of a void deed and a fraudulent pretence of right, and was in fact an intruder upon him. It was as relevant and admissible as the evidence of payment, and the order of introducing the evidence was subject to the discretion of the court. More regularly, perhaps, it might have come in by way of rebuttal, but we see no substantial objection to its admission as a part of the plaintiff’s case. It is not objected to on this ground. But it is insisted that it was an attempt on the part of the plaintiff to invalidate his own evidence, or to attack the validity of the proceedings collaterally. Their validity, as such, is neither invalidated nor attacked. It is not by reason of any error, irregularity or defect in the records and documents, in themselves, that they were sought to be avoided ; but the purpose and effect of the evidence was to show that a judgment, once regular and valid, had been paid and extinguished, and that the defendant had made a fraudulent use of the execution and proceedings thereon, regular enough on their face, but nullities in law and fact. It is not the case of calling in question the regularity and validity of judicial proceedings in a collateral suit. It is more like an attempt to contradict the party’s own witness. But eren in such case, the rule only precludes an impeachment of the veracity and credibility of the witness, but does
As to payment, the evidence clearly shows that the parties intended such a satisfaction of the judgment as would extinguish the lien. For this purpose payment in cash and a note, to the full amount, was accepted by the owner of the judgment, and the receipt given expressly said it was for the judgment. The very object the party had in view in making this payment was to remove the lien, so that he could sell his own land. It did not matter whether the note was paid or not when due. Being received for the amount of the judgment, and accepted in full satisfaction thereof and for the very purpose of removing the lien, it amounted to absolute payment. The judgment was thereby satisfied and extinguished, even without satisfaction being entered of record in the court in which it was rendered — Witherby v. Mann, 11 J. R. 518. The parties did not stop here. They went directly to the clerk’s office of the Laud Court, and an .acknowledgment of full satisfaction was there entered in the abstract of judgments. The entry was written by the clerk, in the column ruled for such entries, and signed by the owner of the judgment. The statute provides, that this abstract of judgments shall be kept by the clerk of the Land Court, and that no judgment of any court in St. Louis county shall be a lien on real estate until an abstract of such judgment shall be entered in that book ; and it is to be ruled in columns, to show the names of the parties, the court in which the judgment was rendered, the date thereof and of its entry in said book; and it is also to have “ a vacant column in which to state the satisfaction, or other disposition of said judgment.” Liens are to have priority according to the period of their respective entries therein. This book is a record of the Land Court. The clerk is to keep it, and he has power to make these entries in it. The act requires that there shall be a column in which s.atisfac
It has been a question whether a sale under a satisfied judgment was wholly void, or only voidable; but it seems to-be conceded that it is an absolute nullity against a purchaser with notice of the fact, and in bad faith — Reed v. Austin, & Mo. 713; Jackson v. Anderson, 4 Wend. 474" court="N.Y. Sup. Ct." date_filed="1830-05-15" href="https://app.midpage.ai/document/jackson-ex-dem-anderson-v-anderson-5513385?utm_source=webapp" opinion_id="5513385">4 Wend. 474. Whatever may have been the intent of the defendant here, his acts and proceedings were such as to work a positive fraud. Having, received absolute payment of his judgment, he should have-known that he had no right to receive another satisfaction from anybody else. He refuses the money on the note ac
Judgment affirmed.