238 Mo. 584 | Mo. | 1911
Lead Opinion
This is an appeal from a judgment for the defendant in ejectment brought in the New Madrid Circuit Court, January 25, 1907, to recover a section of land in that county described as section five in township twenty-four of range fifteen, and removed to Bollinger county by change of venue. The plaintiff claims through the defendant," who admits his possession, by two sheriff’s deeds founded upon one sale made under an execution issued upon a judgment of one Depoyster against the defendant in the New Madrid Circuit Court for one hundred and fifty-one dollars and eighty cents, entered at the March term, 1900. The execution was issued July 28, 1900.
The September term, 1900, of the New Madrid Circuit Court adjourned on September 26th, the eighth day of the term, until December 3d, when it again adjourned until December 5th, on which day the land was sold by the sheriff, J. A. P. Willett, to James V. Conran and W. L. Stacy, through whom the. plaintiff deraigns his title. The sheriff’s deed to them was made the same day, and acknowledged at the following March term.
This deed contains all the statutory recitals, stating, among other things, that the sheriff “did on the 19th day of November, 1900, levy upon and seize all the right, title and interest of the said Jacob Imhoff” in the land conveyed, and the facts showing due advertisement of the sale. It purported to convey the section in controversy and section nine in the same township and range. It was acknowledged in open court, and the acknowledgment ordered by the court to be indorsed upon the deed, which was offered in evidence by the plaintiff. The defendant objected to its introduction on the_ground that it is void on its face, be
The plaintiff then offered another deed to the same land to the same grantees, dated December 17, 1906, purporting to be made “for the purpose of correcting the erroneous recital” that “said land was not levied upon until the 14£h day of November, 1900.” It was, in other respects, like the former one, except that it recited that the levy was made on the 17th day of August, 1900. This deed was made and signed by J. A. P. Willett, as “late sheriff of the county of New Madrid and State of Missouri,” and was acknowledged by him as such late sheriff, in open court on the same day, and during the September term of the New Madrid Circuit Court, and the court thereupon ordered the certificate of acknowledgment to be indorsed-by the clerk upon the deed.
The introduction of this deed was objected to by the defendant on the ground that the ex-sheriff had no right to make the amended deed more than five and a half years after the acknowledgment of the other, without an order of the court. This objection was sustained and plaintiff excepted.
Plaintiff then proved that the files in the Depoyster case, including the execution, were either lost or had been destroyed in a fire that burned the New Madrid courthouse in September, 1905, and introduced deeds showing title to whatever interest Conran and Stacy, the execution purchasers, could convey, and offered in evidence a deed of trust from Jacob Imhoff, dated February 16, 1896, conveying the lands to the Alexander County Savings Bank of Illinois, to secure the payment of a note, but without offering to connect himself with it in any way. He also introduced without objection, a proof of publication in the ordinary form of a notice of sale under the same execution
At the close of plaintiff’s evidence the defendant demurred to it, the demurrer was sustained by the court, to which plaintiff saved his exception, and the court entered its judgment, and after the overruling of a motion for a new trial, to which plaintiff saved his exception, this appeal was taken.
I. The first question presented in this record and by the briefs of counsel is whether or not the first deed made by the sheriff to effectuate the execution sale under the Depoyster judgment is prima facie valid and effectual to convey the title of defendant. It is attacked solely upon the ground that it recites that the levy was made after the first day of the September term of the New Madrid Circuit Court to which it was returnable, that the law required that it should, on that day, be returned to and filed in the court that issued it, and that it then, whether so filed or not,
The whole subject of the appropriation of the lands of a judgment debtor by execution has, in this State, been pretty well covered by statute, to which we must primarily look for information, and it is only the gaps that are left which we must fill by resort to the rules of the common law which are enacted for such purposes. [R. S. 1909, sec. 8047.] The statutes provide (R. S. 1909, sec. 2175) that “every execution issued from any court of record shall be made returnable at the next succeeding term, unless the plaintiff, or person to whose use the suit was brought, shall otherwise direct; then it shall be the duty of the clerk issuing the same to make it returnable to the next succeeding term.” Whatever this may mean, it is, of course, not in the power of either the clerk or court to modify it. These words are simple and direct in their meaning, and neither say nor imply that the execution must be returned on the first day of the term. The Legislature appears to have applied the same interpretation, for, in section 2228, in which it is provided that, “In all cases where an execution is or shall be issued and levied by the proper officer upon real estate, and for any cause a sale of such real estate shall not be made at the next term of the court of the county in which such sale is to be made, the execution and lien created thereby shall remain and continue in force until the end of the second term of the court of the county where the land is situated, and until a term of said court is held, at which said real estate may be sold according to law.” There is no hint here that any mandate of the Legislature is necessary to keep the execution in force during the return term; that is taken for granted. But the needful thing is done. The whole of the next term is made its “return day.” In Lackey v. Lubke, 36 Mo. 115, a case cited by respondent in his brief, and in which an execution sale
The respondent insists, notwithstanding these provisions of the statute, that a “levy” in vacation is necessary to continue the execution in force during the return term. The question, what is a levy upon real estate, considered in the abstract, is one of the pleasantries of the law, but when concretely applied to one’s property rights, it becomes entitled to the most serious consideration. This court has confessed that the law is silent as to what acts are-necessary to constitute a levy. [Duncan v. Matney, 29 Mo. 368; Slattery v. Jones, 96 Mo. 216.] It seems never to have attempted a definition, but in Lackey v. Lubke it assisted us r&aterially in the consideration of this question. Still speaking of the section of our statute last quoted, it said: “If the mere indorsement of a levy on the back of an execution would keep it alive, this section would be unnecessary; for the sheriff could indorse the levy on the back of the execution on the same day it is issued. But what effect has a levy on real estate? or, in other words, the mere indorsement on the execution that the sheriff has levied it on certain real estate ? It is not felt by the defendant — it is, perhaps, not even known by him — until the land is advertised for such sale, and it has not infrequently been held that no levy need be indorsed on the execution at all.” The vague and illusive character of the thing which may present itself to the judicial mind in answer to the call of the “levy” finds an apt illus
The Legislature has tried consistently to avoid this danger. It was early enacted (R. S. 1835, p. 254, sec. 10) that the clerk of the court shall “keep in his office a well-bound book, and enter therein an abstract of all executions issued out of his office, showing the date, the names of the parties, amount of debt, damages and costs, to what officer directed, the return (if any) and a reference to the book and page wherein the judgment, order or decree whereon such execution issued is entered. And every such clerk shall, moreover, keep a regular index to such abstract of executions, arranged alphabetically, both by the name of the plaintiff and defendant therein,” and that (lb., p. 256, sec.
All these provisions were continuously in force during the sixty-five years that have intervened between the time they were built into one general scheme for levying a judgment debt against the lands of the debtor by execution, and the making of this deed, and are still in force. We have quoted from them so fully, to show that they are not, in their relation to the older systems which had attempted to apply the nomenclature of the common law to a new use, patches of new cloth sewn into an old garment, thereby making the rents worse, but that they constitute a plan admirable for its simplicity, by which officers are clothed
The recital in the deed of a levy being neither required nor sanctioned by the statute, such recital, as contained in the deed in question, is mere surplusage, and should be rejected in considering its prima facie effect. [Shelton v. Franklin, 224 Mo. 342, 367; Hunter v. Miller, 36 Mo. 143, 147.] For this reason, and for the further reason that the sale of the land by the sheriff during the return term of the execution would
We have carefully read all the Missouri authorities cited by respondent and find none of them inconsistent with the foregoing conclusion. It is true that in Karnes v. Alexander, 92 Mo. 660, Norton, C. J., speaking for this court, said that counsel contended, and it might be conceded, that the first day of the term to which a writ of execution is made returnable is the return day, but he proceeded to show that such a doctrine would not control the case in hand because the execution was issued upon a judgment of á justice of the peace enforcing a special taxbill against the land sold: He held explicitly that where the judgment designates the land to be sold, the execution issued thereon continues during the entire return term.
II. 'Had the instrument-we have been considering-been absolutely void so that it would be equivalent to no deed, as is claimed by the respondent and held by the trial court, it was still competent for the sheriff who made the sale, after his term of office expired, to consummate such sale with the deed as was done in this case. [Land & Lumber Co. v. Franks, 156 Mo. 673, 689; Griffin v. Franklin, 224 Mo. 667, 683.]
The admirable scheme of the statute we have been considering- includes this contingency also, and demonstrates the foresight of the Legislature which framed it, and by its terms removes the very objections which are here urged against it in argument.
Section 2237, Revised Statutes 1909, which is also continued from the Act of 1835, provides: “When any officer shall have levied upon any goods and chattels, real estate ór other effects by virtue of any execution, and the term of service of such officer shall expire and
It will be observed that this section applies only to such officers as have terminated their official relation by the expiration of their term of office, leaving their capacity to act in all other respects unimpaired; and it imposes upon them and their bondsmen responsibility for the completion of important duties undertaken during tljeir terms, many of the details of which would necessarily be preserved in their memories only.
Section 2239, referred to by Judge Burgess in Land & Lumber Co. v. Franks, supra, applies entirely to a different class and is framed upon a different theory. It provides that “when any officer shall die, be removed from office or disqualified, or shall remove from this State, after the sale of any property and before executing a conveyance therefor, as required by law, or after executing a defective conveyance therefor, the purchaser, his grantee, or any one claiming by, through or under the purchaser,” may, by verified petition, apply to the court for a deed, and that if the court is satisfied that the purchase money has been paid, it shall order the sheriff then in office to execute, acknowledge and deliver the same.
These two sections cover the whole ground of the execution of deeds after the sheriff who made the sale had ceased to hold the office; one of them applying to
For the reasons státed, the judgment of the circuit court will he reversed and the cause remanded for such proceedings as shall be consistent with this opinion.
Concurrence Opinion
The foregoing opinion of Brown, C., is adopted as the opinion of the court.