I dissent from the majority opinion for the following reasons:
First: Because it holds that Section 1675, Revised Statutes 1919, does not mean what I believe it plainly and unambiguously says and means, namely: "Any person against whose property any execution or order of sale shall be issued" etc., may for good cause stated in a verified petition move the court to quash the execution. *Page 447 This verified petition was filed in the case, and stated, among other reasons for quashing the execution, that "he is the owner in fee simple of the following real estate" (then follows description of the property levied upon by the execution). "That this movent has owned the above described property and held the title thereto for a number of years, and the records of the Recorder of Deeds of Jackson County, show the title in said movent."
Then follows prayer for the quashing of the execution.
The undisputed facts are, and as the record shows them to be, the execution in question was issued upon a judgment rendered in the case of Olive May Nelson v. James Andrew Nelson, to which suit John M. Nelson, the movent, was not a party, and consequently the judgment was not against him nor is the execution against him, yet it was levied upon his property. Notwithstanding all of these conceded facts the motion was overruled. Notwithstanding the majority opinion, in my opinion, the movent's legal and equitable rights have been denied him by misconstruing the letter and spirit of the statute previously referred to, and which is hereinafter copied in full.
Second: My next reason for dissenting is for the reason that the majority opinion absolutely ignores the law and its spirit as announced by this court in the cases of State ex rel. Brubaker v. Tucker, 286 Mo. 468, 229 S.W. 163, and State ex rel. Fabrico v. Johnson, 239 S.W. 844, as will be readily seen by their perusal. While those cases differ in form from the case at bar, they were suits on the sheriff's bond for his refusal to levy and sell real estate as the property of the execution defendant as required by Section 2240, Revised Statutes 1909, where the record showed that the execution defendant had no interest in the property, but that it belonged to another. The court in both cases held that the plaintiff could not *Page 448 recover. Had the sheriff in this case, as he did in the Brubaker and Fabrico cases, supra, declined to levy and sell the real estate in question, and had the plaintiff sued him on his bond, for such declination, then this case would have been verbatim etliteratim with this case, without dotting an "i" or crossing a "t," with the sole exception of the names of the parties and descriptions of the real estate.
The form of the action makes no difference as to the remedy granted, if it authorizes the relief prayed and there could be no question as to the legal and equitable relief prayed, as is conclusively shown by reading the statute before copied. Now I ask the simple and just question, why make fish of the one case and fowl of the other? Is it not just such decisions as the one expressed in the majority opinion that brings this court into disrepute and contempt? And if it does not do so, should it not do so?
The facts and the law in all the cases are precisely the same. I will now state the facts of the case and my views of them a little more fully in order to more clearly show the gross injustice and palpable error that has been inflicted upon the movent in this case, and how helpless he is with all the law of the State on his side. A court of equity may be able to correct this error in a suit to remove the cloud from the title of his property, which would entail a great expense and probably much delay. Then, what assurance has he that he will meet with a more just ruling than he has at the hands of this seemingly sourly disposed court?
Counsel for appellant contends that the trial court erred in failing and refusing to declare that the execution as shown by the record was null and void and of no force or effect as to the movent, John M. Nelson. In my opinion this contention is well founded.
A similar question was presented to this court in the cases of State ex rel. Brubaker v. Tucker, 229 S.W. 163, and State ex rel. Fabrico v. Johnson, 239 S.W. 844, differing in form only. *Page 449
In this case the record shows that the appellant had purchased the real estate in question from James A. Nelson, the defendant in the divorce case, some six or eight years prior to the levying of the execution, and in fact, years before his father died, from whom respondent claims her former husband inherited the land. Evidently the judgment was no lien upon the probability of James A. Nelson's possibility of inheriting the land from his father. At most, he had only a bare right to a possibility of inheriting the land from his father, but the father could have conveyed or devised the land to another, at any time before his death, and had he done either, James most certainly would not have inherited any interest therein, and the reason of that is, he had no vested interest in his father's estate while or so long as he lived, and that being true, I can see no legal objection to James's legal right to convey that possible right of inheritance to his brother in his father's estate, during the lifetime of the father. There is no pretense made that he conveyed this right of inheritance to John M. Nelson, the movent, for the purpose of defrauding his creditors, nor am I able to see or comprehend how he could do such a thing.
It is upon similar undisputed facts that the opinions of this court in the cases, supra, were based.
The right to labor is a property right, just as much so as real and personal property, and is equally protected by the State and Federal constitutions.
While this right exists, however remote may be the probability of some persons exercising it, yet they have the legal right to assign his or their unearned wages, if he or they can find a purchaser, and should such a laborer assign such wages, I do not think a creditor could garnish such wages in the hands of the assignee and deprive him of such rare values.
It seems to me the same principle of law which underlies and governs the supposed case, also governs and controls the case at bar, the right to purchase a right to an expected inheritance. *Page 450
Counsel for respondent contends that because the appellant is not a party to the record, he has no standing in court, and cannot maintain the motion to quash. In my opinion this contention in a case like this is untenable, as shown by the cases previously cited, and which is in express terms authorized by Section 1675, Revised Statutes 1919, which reads:
"If any person against whose property any execution or order of sale shall be issued apply to any judge of the court out of which the same may have been issued, by petition, verified by oath or affirmation, setting forth good cause why same ought to be stayed, set aside or quashed, reasonable notice of such intended application being previously given to the opposite party, his attorney of record or agent, such judge shall thereupon hear the complaint."
It would seem to me to be a monstrous doctrine to hold that an execution issued on a judgment rendered in a case of John Jones, against John Smith, could be levied upon any property of the latter, and sold, and that he could not prevent a cloud thus being cast upon his title, and that his only remedy would be to resort to a court of equity for redress, which might cost large sums of money and years of litigation and delay, and thereby tie up his property indefinitely, to his additional great damage. I know of no good reason or authority for such a monstrous contention, especially when the same court, same judges, same laws, are just as capable and ample to protect all the rights and equities of all the parties in a proceeding to quash a motion issued on such a judgment, as could or would be done in an original equitable proceeding instituted in a court of equity for that purpose. Both parties must be in court, and the motion, and answer thereto, can present to the court all the rights and equities existing in the case, and the same evidence could be resorted to, to probe or disprove the issues so presented, just as well and completely as if the movent had permitted the sale to have taken place, and then resorted to a court of equity for relief. And in *Page 451 either case, under the facts of the case as presented by this record, the appellant would be entitled to the relief prayed, and under neither would the respondent be entitled to have the property sold to pay her debt, however just it may be. The old saying that it is not just to rob Peter to pay Paul, applies very forcibly to this case. There is not an intimation in the pleading or evidence, as disclosed by this record, that James A. Nelson has any legal or equitable right, title or interest in the property in controversy which is subject to levy and sale under the execution which it is sought to have quashed, nor is there intimation contained herein that there exists in fact any evidence, outside of the record, which would tend to show that James A. Nelson has any interest in this property.
For the reasons stated this judgment should be reversed and the cause remanded, with directions to the circuit court to render a judgment quashing the execution as prayed for the motion to quash.
Headnotes 1 and 2: Executions, 23 C.J. sec. 426.