Stillwell v. McDonald

Conveyances — Recording—Attachments.—A deed for land executed and delivered before but recorded after the levy of an attachment, and before the sheriff's sale under the judgment, takes precedence of the sheriff's deed. The deed is valid as between the parties thereto without recording. The attaching creditor is not a purchaser under the statute, and the deed being recorded at the date of the sheriff’s sale, the purchaser buys with notice.

Error to Hannibal Court of Common Pleas. On the 10th day of May, 1860, one Angus W. McDonald was the owner in fee of the ground sued for, and on that day conveyed one undivided half of said lots to his brother Edward C. McDonald, since deceased. The deed was recorded December 7, 1860. Before said deed from Angus W. to Edward 0. McDonald was filed for record, one Samuel S. Watson, without any notice thereof, sued out a writ of attachment against the said Angus W. McDonald and caused said Angus to be personally served and the land in controversy to be attached November 7, 1860. Watson prosecuted his said suit by attachment against Angus W. McDonald, and on the 14th day of April, 1862, obtained final and general judgment. On this judgment Watson caused a special execution to issue, and said execution was levied on the land in controversy as the property of the defendant Angus W. and it was sold by said sheriff, and the plaintiff in error became the purchaser and obtained a deed from said sheriff therefor conveying to him all the right, title interest, claim and pretension whatsoever that said Angus W., the defendant in said execution, had in said premises at the time of the levying of said writ of attachment thereon. Susan McDonald the widow, and the other defendants, as heirs at law of said Edward C. McDonald, deceased, having the land in possession, Stillwell brought this suit against the defendants in error in the Hannibal Court of Common Pleas to recover the property and test the title. I. An attachment is a lien on real estate from and after the moment of its levy or service — Drake’ on Attach. 226-7; Davenport v. Tilton, 10 Mete. 820; Kittridge v. Warren, 14 N. H. 509; Yreeland v. Brown, 1 Zabris. (N. J.) 214; Wells v. Blander, 10 Smead & M. 348 ; Downer v. Brackett, 5 Law Reporter, 393; Rowell’s case, id. 300 ; 21 Vt. 599 & 620; Haughton v. Eustice, 5 Law Rep’r, 505 ; Ingram v. Phillips, 1 Day, 117. II. The levy of a writ of attachment on land not only creates a lien or charge thereon from the moment of its levy, but a sale under an execution issued on the judgment against the defendant in the attachment relates back to the time of the levy of the attachment and passes the title of the defendant to the purchaser — 23 Mo. 85. Respondents rely upon the principles settled by this court in the case of Valentine v. Havener, 20 Mo. 133 (and the case of Davis v. Ownsbv, 14 Mo., therein cited and thereby affirmed), as analogous strictly to that involved in the case at bar. This principle is based alike on precedent and policy, commends itself to our sense of natural justice, and is now regarded (as it has been for many years) as the settled doctrine of this State. To disturb it now would work great confusion in the titles-*to réal estate and much hardship. In this particular case, it would be obviously unjust that it should be disturbed. The failure to record tlie deed under which respondents claim through Edward 0. McDonald, was an inadvertence, and no pretence of any fraud in fact or intention is shown by the testimony. On the whole case, the respondents insist that the judgment of the court below be affirmed.