Summary
ERROR to St. Louis Circuit Court — Ch’y.
STATEMENT OF THE CASE.
Jno. R. Shepley, on tlie 29th of October 18 17, brought his bill in chancery, in the circuit court, of .St. Louis county, (which was once or twice altered by amendment ami the addition of supernumerary matter, dona by leave of court,) agiinst Elisha i\E. Kennerly, deceased, widow ami administratrix of James Kennerly deceased, and the heirs of said Kennerly.
The bill states, in substance, that in 1823, in the TJ. S. District Court for the Missouri District, two judgments were rendered against James and George H. Kennerly, the one in favor of Comyger & Prusehouse, and the other in favor of William Lum'. That iii 1325, executions were issued on said judgment, and levied upon the lot of ground now in question. And that on the sixth day of September 1825, the marshal, acting under said executions, sold said lot of ground to John O’Fullon, “all of which,’’ says the bill, i:wis dime in due form of law.”
That the marshal did, on the 9th of September 1S25, proceed to execute a deed for llie premises, to John O’Fallon, the purchaser, and on the 14th of September, did acknowledge the deed in the U. S. District Court, which acknowledgment is entered of record in said court. Thai on or about Ihe same day, the' marshal delivered the deed to O’Fallon, who paid the consideration money, without slating how much, and who kept the deed for some time; and that the deed passed to and vested in O’Fallon, the interest of Kennerly in the lot.
That on the 23d of May, 1836, O’Fallon, by deed of that date, conveyed Ihe lot to Charles H. Anderson, who afterwards conveyed it to Win. C. Anderson; who mortgaged it to the Commeicial Bank of Cincinnati; who foreclosed tlie m >rtgage by íegular suit, and under their judgmens, bought in Ihe land and conveyed it to trustees of their own; and that said trustees, on trie 1st. of .Tul v 1817, by deed of that date, conveyed the same to the plaintiff. “By which conveyances, says Ihe bill, the title in fee simple was vested in” the plaintiff.
That the said conveyances were made for valuable considerations; that the premises, ever since the execution of tlie deed to O’Fallon, have been in the uninterrupted possession of the plaintiff', and those under whom he claims, and that ho still lias possession.
That the deed to O’Fallon (of 9ill Sept. 1825) has never been recorded and cannot be, because it is lost, or has come to the possession of the defendants, or some of them, and is cancelled or' suppressed, as plaintiff believes.
That at the date of the judgment of Conryger and Prusehouse, and of Linn against Kennerly. he, Kennerly, was utterly insolvent, and so continued till his death, and his estate is insolvent.
That ihe sale from O’Fallon to C. I!. Anderson was made with the knowledge and consent pf -Kennerly, and was, in effect, a sale by him, as he received the whole or tlie greater part of the purchase money.
That Kennerly has since died, leaving the defendants, his widow and children, one of the children being a minor.
That in consequence of (lie loss of ihe deed, lie is destitute of the ¡.roper evidence of title, and Ills rightful ownership of the property is put in jeoperdy, with reasons to show how it may be put in jeoperdy.
That letters of administration were granted to Mrs. Kennerly the defendant, on the 12!h of October 1311.
That the administratrix, knowing that the deed from the marshal to O’Fallon was not recorded, “obtained from the probate court an order of sale of said premises, as still belorging to tlie estate of James Kennerly deceased,” without slating when, how or for what purpose such order was made, and without producing or referring to the record, thereof, and has proceeded to advertise the same for sale, exhibiting a copy of the advertisement.
The hill prays an Injunction, to restrain sale under the order of probate court, and to prevent tlie making of any deed, by the parties, that might affect the property; and the injunction was granted.
The first hill was demurred to, and the demurrer sustained. The amended fail! was demurred to, and, an agreement, by altering a date and filing record of foreclosure of mortgage deed o£ Anderson to the Commercial Sank, leave was given plaintiff to amend again, and upon the coming in of the answer of the defendants, leave was giren to plaintiff to amend again, which was afterwards done, in substance.
That before the judgment, and sale thereunder, by the marshal to O’Fallon, James Kenneriy owned the lot in fee simple; and Mr. Kennedy had no interest therein, by the Spanish law, or any law in force at the time; and tílaí Kenneriy acquired title to the lot 12th of November, 1818,
That the marshal’s deed to O’Fallon is lest, and cannot be found, after diligent search. That if O’Fallon ever made a deed of the lot in question, to Mrs Kennedy, as stated by her and by Taylor and wife, defendants, it was made without consideration, and not delivered to any person with intent to pass the title.
That the deed to C. R. Anderson was made for a valuable consideration, which is stated on the face of the deed; which was duly paid to Anderson; and that Anderson had no notice of thq conveyance to Mrs. Kenneriy, and that neither the plaintiff nor the others through whom he claims, had knowledge or notice of it. That he never heard of it til! since this suit Was brought; and so denies the validity of if, and alleges that it is void under the statute.
Answers were filed by all the defendants; one of them being an infant, answered by guardian, ad litem, appointed on motion of the plaintiff; and one, a married Woman, Mrs. Taylor, answered with her husband. The answers ctf the heirs are not very important, and need not be specially stated here.
Mrs. Kenneriy, as widow and administratrix, filed two answers. The first, to the amended hill, in substance, that she is a widow and entitled to dower in Kennerly’s estate, after payment o£ debts; believes, from information, that her husband never had an interest in the lot, but does not know that he was ever divested of title. He said that he got title of it in 1817, and that she as his widow, has right, by community to one half; that she has never released her right, and claims to be protected in it. Does not admit the judgment mentioned in the bill, nor the proceedings under them, nor the deed to O’Fallon; knows nothing of the deed or its loss, and demands strict proofs of all those facts, and of the legality and regularity of them.
That the plaintiff had not used due diligence; and denies his right to set up the sup posed lost deed, without strict proof of its execution and contents.
Admits the insolvency of James Kenneriy, and that much of his property was sold and sacrificed; but she has no recollection of the sale of the lot in question. Has heard that the lot in question was, through the agency of some of her friends, bid in, in the name of Col. O’Fallon, at the nominal price of $10, for the purpose of having it conveyed to her or her children, and that said O’Fallon did, soon afterwards, execute a deed of said lot to her, in due form, and deliver the same, for her, to James Kenneriy, her husband. She did not know, personally, of the. deed, hut has never relinquished any right she may have under it; and claims to be protected.
Have never seen the allesed deed from the Marshal to O’Fallon, and denies the destruction or suppression of it by hersetf, or any one with her knowledge.
Alleges an objection to the advertisement of the marshal’s ruis, and insiste that it is sufficient to invalidate his sale.
Does not admit the fact or legality of the mesne conveyances alleged in the bill.
Does not admit the possession of the lot, as stated in the bill, and requires proof. Admits nothing but what is expressly admitted, 'and waives no right of dower, or other rights in ihe premises in question
Admits, that at the instance of persons acting for the creditors of James Kenneriy deceased, he did take measures to have all the right, title, claim and interest of James Kenneriy deceased, in and to the premises in controversy, sold, to pay the debts of said deceased; and obtained an order of sale from the probate court of St. Louis county, and had advertised the same for sale, When she was prevented from proceeding further, by the injunction granted in this cause; and as complainant has failed to make said creditors parties to this suit, she submits to the court that their interests should be sedulously granted, in the proceedings and determination of this cause.
The answer claims the protection of the court, for herself and the heirs and creditors of James Kennerly deceased, and denies the right of plaintiff to recover in this cause, even if all the statements of the bill were true.
The amended answer of Mrs. Kennerly states, in substance, that James Kennerly, at the time of his death, was deeply indebted and insolvent. That various claims were exhibited and allowed against his estate, to the amount of $6,690 50, giving the names of Ihe principal creditors. That the allowances were all made in the year 1841 and 1842; and that payments have been made to the amount of $747 97, out of the assets of the estate; and that the remainder with interest is still due.
That in discharge of her duty, as administratrix, she did, on the 26th day of June, 1847, file •her petition for the sale of the real estate, describing the manner ojf proceeding, and that, on the 10th of September, 1847, an order was made by the probate court, directing the said administratrix to sell the real estate of said Kennerly, being the lot in question in this suit, for the purpose of paying the debts of said Kennerly; that under said order she was about to sell, and would have sold said let, but that she was stopped by the injunction in this case.
She claims that the order of sale was a judicial proceeding, with the force and effect of a judgment, which appropriated the property to the payment of debts, and ought not to be set aside in favor of such claim as the plaintiff’s. And she files with her answer a certified copy of the record of the probate court.
There were replications to the answers.
1 A good deal of testimony was given on both sides, which is all noted in the b'll of exceptions. It is too voluminous to be inserted here, at large, and as parties might not agree upon results and conclusions to be drawn from it, we refer to the bill of exceptions and the documents agreed to be read.
Upon the whole case, the Court decreed, that all the title of James Kennerly, at the date of the judgments under which the Marshal’s sale was had, (Feb. 7, 1823) and all the title of the defendants, and each of them, be vested in Shipley, in fee simple. And that the administratrix be enjoined perpetually from selling the land, under the said order, or any other order of the Probate court, with a judgment for costs and award of execution.
The defendants moved fora re-henring, and filed reasons in writing, which are in the record. The court overruled the motion.
The defendants excepted and bring the case here by writ of error.
J. The bill itself is defective, and insufficient to warrant such a decree as this, if al! its Statements were admitted to be true, in manner and form, as stated. ■
And under this general point,
First, every bill in equity should slate such facts and circumstances, being true, as necessarily lead to a decree for the plaintiff. It should state, not the truth only, but the whole truth, of all that is'mat erial to the object of the bill, or to a just decree in the case.
But this bill, speaking of the order of sale prayed to be enjoined, states only that the widow aud-admr’x. of Kennerly “had obtained an order of the St. Louis probate couit, to sell the said lot” — Whereas, if the whole truth had been told about that order of sale, it would have appeared, that the sale was ordered indue course of law, to pay the judgment, creditors of the deceased.
Besides this suppression o'-material facts, thb short statement (deemed sufficiently impoitant to be copied into the decree) contains the suggestion of a false idea, in the allegation that the widow and administratrix obtained the order. Thus holding out the idea that the order of sa'e, so defectively stated, might be for the ben-fit of the widow as such. Second, (under the first point,) the creditors (or whose interest the sale was about to be made, ought to havp been defendant to the bill; for the object of the HU was to defend their claims to the land: Story’s Equity Pleadings sec 81, &c.
The plaint iff knew of the existence of the creditors, fir he stated in his bill the order of sale, and was bound to know the whole record, of which that order was the end.
. II. The allowances of the piobale conr‘, in favor of the creditors of the deceased, were judgments; and‘he creditors were entitled to ail the legal and beneficial effects of such judgment.
‘1 hat they are legal judgments is well se.ttled by the decisions of this court; 0 Mo. Rep. 501. MrKenners vs. Davis; 7 Mo. Rep. 469, Gamble vs. Hamilton.
III. Those judgments were upon the lands of the deceased; the order of sale was an execution, is-ued on those judgments, designating the iarid to be sold, and thus stronger and more conclusive Iban a com' law wriiof fieri fieiaa. And the advertisement of the sale was a levy, according to our common practice under executions.
IV. If the plaintiff had a pieifect conveyance of the land, from Kennerly nr the Marsh?.!, the same being unrecorded, at the date ot the judgment allowances, his title must yield to that of the.creditors. It. would be soon amere lien: 7 /Mo Rep., Jones vs. Luck, 8 Mo, Rep., Hill vs. Paul; 9 Mu. Rep,, Reed vs, Austin. But this is a case stronger than a mere lien. It is a specified appropriation.
V. Tho=e judgment creditors had a perfect legal righr to have the land sold to pay their record deb's- f r the land stood of re -ord, in the name of James Kennerly, their debtor. And the equitable right to have the land for their money, w.n at best, as good as hers. Shepley can set np to have the land for his money. They are not charged or chargeable with notice of any defect in, or incumbí anee upon the title. Rui he is charg-abie with knowledge of' the creditors and their rights. And with that knowledge he purchased a supposed equity, against fho known law; fur he knew » lien he purchased, that he liad no deed of record, and now it appears, that he had no deed* al all.
VI. The administratrix, though not representing the persons of the creditors, represented fh°ir lights in the matter of gelling the land; and in proceeding to sell, ac ed solely for their benefit; so that the annulling of those proceedings is the absolute deprivation of their lega? and equitable light, ascertained and adjudged, of recoid by a court of competent jurisdiction
Vfl. The bill takes no notice of ilm creditor* of James Kennerly, brat sues his hei-s, anti hi* widow ¡n her individual right, and as adm’rx. and cha-ges upon them notice of the Marshal’-: depd tn O’Fallon, and insinuates the suppression of the deed.
The heir* deny ail n tice, and Mrs. Kennerly denies all knowledge of the deed, hut ad-mi s ¡hat she heard of tile sale to O’Fallon, and stales }hal she In aid at Ihe time tha! the purchase u as made by O’Fallon for‘he use of her am! her chifihen. And these answers sta'd as true, for they are not contradicted.
VIII The Maishal’s sale (if il had been perfected by a dt ed drily acfennwledged and' recorded,) was irregular-and illegal. It wa* not mide acceding '0 the ¡taws' of Miss oink in Cree’ at the lime: Rev C. 1825, p. 220, and ps. 368-9, sec. 10. 20, 2S.
The Mmshal’s sale of this land was made under a power, merely lega’, end even courts of eqni!y. which sometimes grant relief against the opfedne e’xectifn n of prfveie powers, wit? nnt lelievc i'gain-t the,defective execution of a legal povur: I Stury’s Rep. 4'78) Bright vs. t-.ovd.
.‘hit courts of law are inexorable in requiring the literal pe-forinance of a'l statutory prereqni'itcs: Sugdon on Powers, 209 10-15 and 549; 3 Ea-t Rep. 410, 440; 10 East R. J58R Mo. Rep., 343; Cook etai. vs. Teeblv; 9 M>. Rep., 878, Reed vs' Morton 4 Hill (N V ) K., 7<>, 92, i
The sale wa* not made according to any law of the United State*. The proces* act of 1792, did not apply to the court established in the new States, created after the date of the act: 10 Wheat. R, 15 (5 Cond. R., I:) Wayrnan vs. Southard; lb. 51, (,5 Comí. H.,22j) U. S. Bank vs. Hoisted,
It was not according to any rule of Court-; there was no rule on the-subject, although the Court had statutory power.to make rules to govern sales, and such rules were the more necosmry, because congress did not pass a procesj act for the courts in Missouri, till 1828.
Theie was no settled practice or old usa**, to give apparent sanction to such a sale; fos> the District Court was in Us infancy, and had no settled practice.
It is notlike the casein 1 Peí, R., Fe'hrton et al. vs. U. S. 13ink, for there the circuit court had long practiced according to the S'ute Statutes, and the written rule of the district court.
. So st ict is this court, in the matter of conveyances, that it does not allow the mast formally written paper to operate a conveyance, unless it be signed, sealed and delivered. Nothing short of a deed can convey lands, in this S ate, no rnitter how plainly an unsealed instrument may express the will of the parties: 7 Mo. Rep. 3)5, McCabe vs.' Hunter; Ib. 387, Moss v*. Andeison.
IX. The Marshal’s deed to O’Fallon, as set up in the bill and attempted to be proved, is Blithely defpciive.
1 The deed was required by law to be recorded, with Us certificate of acknowledgment, and Hot being recorded was not valid, except between the parties thereof, and such as had actual not ce thereto: R. C. 1825, p. 22}, seetim 14; Reeds vs. Morton, 9 Mo. Rep. 878.
2. The*e was no due diligence in seaiching for the deed. Mr. Sheplev’s enquiries weic fna le too late C. R. Anderson’s were also too late, and not sufficiently extensive when made. If Anderson had enquired for the deed when he bought the land, he could iiave gotten it. for then (according to O’Fallon’s testimony) it was in ICennerlv’s hands. He cancelled the deed to hi* wife and left it so. But we are left to co jechire what become of the- deed io 0 Fallon: See the testimony of Shepley, O. R. Anderson and O’Fallon.
3 If one proof be at all allowable in such a case, the exi-tence of (he daed, and its substance ought to he proved so plainly as to give to the opposing par'y the same grounds of objection that he would have to the de*d anil its authentication, if produced. Otherwise, a purchaser, with a doubtful or defective deed, would always do well to leave it. Here, the prool of the contents n, to sell »he lands of debtors, s*ill it b- longs to the Stale lavs b to determine how conveyances shall be made, ami how deed* Ibr bonds sha’l be executed, aiitín-nitica'-d and lecoided: 10 Wheaton R. 192 ( ti Cud II 71 ) McCormick vs. 8u hvmt, 9 Wheat..Tv. 5(15, Kerr vs. Ma-on, 7 Cranch 115 U. 8 vs. Crosby.
If the federal courts can control it e-ne conveyances of land, they may also settle the manner and off et of such conveyances and the mode* and proof amt registry, which no on.e will eotdemi io-*.
X, As to the pncimssion of the land in dispute, 'he te-timony does not show any such possession in the complainant ami those nmiei whom he claims, as \ t íand know riot where if is.
« 8 mplev. wha.n he b uighi. did not know that the lot would be setup for sale, by the adjninislrat ix. He did not know that the creditors would claim it as a part of the estate of Kenner I v.
JOmo !y assents to the sale to Capí. R. Anderson. He drew th** deed to him and received the consideration from Anderson, he having received the mar.-hai’s d^ed from O’Fallon. Why he kept t( a« lid^d^and^üd not record it, does not aopear; and what has become of if, unless some of his heirs or his widow h.ive made way with* it„
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
