Baird v. Given

VALLIANT, J.

This is a suit in equity to set aside a sheriff’s deed to land sold under two executions. The executions issued on judgments, one in favor of J. S. Bowers, the other in favor of William Firth, both against Adam Given, the defendant in this case, and O. E. Hannah and his wife. The suits in which the judgments were rendered were aided by attachments. which were placed on the land in question, June 27, *306 1893. The title of this plaintiff to the land in snit comes through a deed of trust filed for record, June 28, 1893, so that the attachment lien was one day prior to the lien of the deed of trust. Both parties claim title from a common source, O. E. Hannah, who was one of the defendants in the attachment suits and the grantor in the deed of trust. The judgments were rendered at the February term, 1894, of the Randolph Circuit Court, the one in favor of Bowers being for $1,304.65 and costs, the one in favor of Firth for $4,991.26 and costs. After the rendition of these judgments they were both paid except the costs which for a while were left unpaid.

The testimony of one of defendant’s witnesses tended to show that the sheriff’s costs in both cases had been paid before the executions issued, leaving unpaid only the clerk’s costs,'amounting in both cases to about $16, and that testimony seems to be uncontradicted, although the defendant in his statement and brief contends that that is a mistake, that the sheriff’s costs were also unpaid and that the aggregate amount of costs unpaid in the two cases was $91.23. There was no satisfaction of either judgment entered on the record. A year or more after the judgments had been paid as above stated, the defendant in this case, who was one of the judgment debtors in those cases, well knowing that the judgments had been paid, attempted to procure assignments of them to one Poland, his brother-in-law, and did obtain such an assignment of the Bowers judgment, for which he paid nothing, but failed to obtain an assignment from Firth. Shortly afterwards an execution issued on each judgment for the full amount of debt and costs, under which the sheriff sold the land in question. At the sale the land was bid in by one of the attorneys of record of the judgment creditors for the sum of $106. The land was worth from $1,500 to $2,-000. It was levied upon as the property of O. E. Hannah, one of the defendants in execution. When the attorney bid in the property at the sale he did not announce the name of the person for whom he bought, but *307 within a few days thereafter directed the sheriff to execute the deed to the defendant in this snit, and that was done. The execution was issued by order of one of the attorneys for the judgment creditors, but not at the request of either of them. There was evidence in the case from which plaintiff draws the’conclusion that the attorney who gave the order for the execution was, in so doing, acting for the defendant in this case, hut the attorney denied that and testified that he ordered the executions because the officers were pressing him for the costs and he considered it his duty to do so. It is unnecessary to set out in this statement all the matters in detail which are discussed in the briefs, as the facts above stated, which are practically undisputed, must control the judgment. The trial court found for the defendant and rendered a decree dismissing the plaintiff’s bill, from which the plaintiff appeals.

One of the points in dispute is the alleged agency of the defendant in procuring the issuance of the exe•cutions and the sale thereunder. If that were a vital point in the case the plaintiff would be' justified in drawing, as he does, an inference unfavorable to the defendant from the fact that defendant was in court during the whole trial yet remained silent and did not go on the witness stand. But it is not material whether the defendant procured the executions to issue or not; he was fully conversant of all the facts. He was one of the defendants in execution and knew that the judgments, except as to costs, had been paid, yet he participated in the proceeding to the extent at least of becoming the purchaser at the sale. There is also some question as to whether the attorney who bid in the property •did so as the agent of the defendant, and for him, or as the attorney for the plaintiffs in execution. But that is also immaterial under the other facts in the case. If the attorney was acting for the defendant the latter was ■chargeable with the attorney’s knowledge of the facts and knew that the executions under which he was buying were illegal, in that they were calling for satisfaction of debts amounting to more than $6,000 that had al *308 ready been paid and which executions were none the less illegal because they also called for a small amount of costs that had not been paid. If on the other hand the attorney was not acting as the agent of the defendant, then he was acting as the attorney for the plaintiffs in execution and his purchase was as trustee for his clients. Now, what kind of title could those plaintiffs in those executions acquire at such a sale ? If the property was bid in for the plaintiffs in execution they were the real purchasers, and the fact that the sheriff’s deed was, by order of their attorney, made direct to the defendant, does not give to the title so acquired by defendant any different aspect than it would have had if the sheriff’s deed had been made to the plaintiffs in execution and they had made a deed to defendant. A court, of equity looks through mere form and deals with the substance. And it is also immaterial, as it affects the result in this case, whether the order to the clerk to issue the executions was to issue them for the debt as well as the costs or for the costs only. The fact is, whether by design or by inadvertence, they were issued for the full amounts of the judgments, and with the full knowledge of that fact on the part of those plaintiffs and this defendant the sheriff proceeded to execute them. Even if the order had been to issue executions for costs only, the parties knew that the writs were not so issued, yet accepted them as they were and are as responsible as if they had expressly so ordered them.

In addition to the foregoing there is another fact that an equity court can not overlook. Those judgments were against this defendant as well as against the Hannahs, and whatever costs were due he was bound to pay. Whatever he paid, therefore, as for the purchase of the land, he in reality paid in satisfaction of his own obligation. The executions were or should have been against him as well as the other judgment debtors. [Freeman on Ex., sec. 42; Zelle v. Bobb, 14 Mo. App. 267 ; 8 Ency. Pl. and Pr., 420.]

If the defendant had been acting in reference to this matter as one would naturally have acted in de *309 fense of an adverse writ, he would have moved the court or the judge in vacation, as he could successfully have done, to recall and quash the executions. But instead of doing that he pointed out to the sheriff, to be levied upon, this land which belonged to his co-defendant in execution who was a non-resident and absent from the State.

From whatever point of view we look at the case it is impossible to see the defendant in the aspect of an innocent purchaser. Even an innocent purchaser derives no title at an execution sale under a satisfied judgment. [McClure v. Logan, 59 Mo. 234 ; see also 8 Ency. Pl. and Pr., 324, and cases cited in note.]

The judgments in- question were practically satisfied and the defendant knew it.. It is true, if the plaintiffs in execution had for their own protection seen fit to sue out executions for the costs which they had paid, or for which they were liable, they could have done so (Beedle v. Mead, 81 Mo. 297 ; Hoover v. Railroad, 115 Mo. 77 ), but they did not do so; they sued out writs calling for the satisfaction of debts which had already been satisfied. The writs were therefore illegal in so far as any rights which those plaintiffs in execution or any other person with knowledge of-the facts could claim as arising out of them. [Weston v. Clark, 37 Mo. 568 .]

When those executions came into the sheriff’s hands he not only had authority to levy $6,000 or more on the property of the defendants therein, .but it was his bounden duty to do so; he had no right to dispute the writs. [Sec. 3220, R. S. 1899; 8 Ency. Pl. and Pr., 323, and cases cited in note.] And in fact he did sell property worth from $1,500 to $2,000, all that was pointed out to him. If the executions had commanded bi-m to make only the amount of costs, whether it was $16 as the plaintiff claims, or $91.23 as the defendant claims, the sheriff would have been liable as for an excessive levy for selling this land if he could have made the amount out of less property.

And if the sheriff was offering the land for sale *310 under a fee bill or execution for costs only, this plaintiff, to protect Ms deed of trust, could have paid the-amount or bid in the property, because Ms mortgage-debt stood next to the judgments, and be could with safety have made the property bring its full value since the surplus over the amount of the costs due would have been applicable to his debt. But when he was. confronted with executions calling for $6,000 or more he had every reason to presume that the plaintiffs "in execution would run the property up as they could do on their $6,000 debts so as to leave no margin for Mm. Thus the plaintiffs in execution, or the defendant in their shoes, had an unfair advantage and were enabled to take in $1,500 or $2,000 worth of property for $106 and shut out this plaintiff’s deed of trust. A court of equity will not allow that to be done.

The judgment is reversed and the cause remanded to the circuit court with directions to enter a decree to the effect that the sheriff’s deed to the defendant described in the petition, dated March 15, 1896, recorded in the office of the recorder of deeds of Randolph county in book 51, page 410 and following, be cancelled as a cloud on the plaintiff’s title, that defendant render possession of the land to the plaintiff, and pay the costs of this suit.

All concur.