Bray v. Marshall

75 Mo. 327 | Mo. | 1882

Hough, J.

This is an action of ejectment. The plaintiff' recovered judgment in the court below, and the defendant has appealed.

The petition is in the ordinary form. The answer admits that the defendant is in possession, and denies the other allegations of the petition. Both parties claim title under one Michael Keeney. The plaintiff claims under a sheriff’s deed to himself, dated October 30th, 1866, founded upon a proceeding by attachment against said Keeney. The defendant claims title under a deed to himself and one Hardin, executed by said Keeney on the 14th day of September, 1867, and a subsequent conveyance from said Hardin to himself. Both Hardin and the defendant had actual notice of the sheriff’s deed to plaintiff when they purchased from Keeney.

1. attorney: irdlciaiproceedinks not collaterally • questionable. Several irregularities appear in the record of the proceedings by attachment, but none which render the judgment void, and none which present questions of sufficient gravity to merit any extended . ® , *1 . . , c discussion.. Indeed from the statement of counsel they seem to be referred to chiefly because the attorney who conducted the proceeding by attachment, was the purchaser at the execution sale. But that circumstance is of no consequence in the present proceeding. Nor would it be otherwise if the plaintiff in the attachment suit had himself become the purchaser. Holland v. Adair, 55 Mo. 40.

2. attachment: order of publication. Counsel for the defendant err in their statement that the order of publication was made without any affidavit authorizing it. The affidavit filed for the ° . . . . „ . purpose of obtaining the writ of attachment itself contained a statement of all the facts necessary to entitle the plaintiff to an order of publication. It is only where the affidavit for the attachment is based upon grounds other than those which will entitle the plaintiff to an order of publication, that an additional affidavit, setting forth grounds for an order of publication, becomes essential under the 23rd section of the attachment act. R. S. 1855.

s. sheriff’s deed, Nor could the failure of the sheriff to make return, of the sale affect the validity of his deed, or the title of the plaintiff' thereunder.

*■-• The certificate of the acknowledgment by the sheriff, though not as full as it might have been, implies all that the law requires and is in substantial compliance therewith, and we, therefore, hold that the sheriff’s deed, read in evidence, conferred upon the plaintiff a good title.

6. estoppel:pleadiDS' No error was committed by the court in refusing to consider the facts offered by the defendant for the purpose of establishing an estoppel in pais. No such defense vras pleaded, and even if the testimony offered were sufficient for that purpose, which we do not decide, it was properly excluded from the consideration of the court and jury.

e. tnsteuotion: rents and profits. We perceive no error in the instruction of the court in regard to the mode of estimating the rents and profits. The judgment of the circuit court will be affirme¿.

All concur, except SHERWOOD, C„ J., who, having been of counsel, did not sit.