5 Mo. 313 | Mo. | 1838
delivered the opinion of the court.
Evans brought an action of ejectment against Wilder, the defendant, in the circuit court of St. Louis county»
It appears by the record that the lot lies in the city of St. Louis, and that both parties claim under one Ris-don II. Price.
Evans gave in evidence a judgment recovered by him c-j cj v Def. against Price, in the circuit court of St. Louis county, on the 4th of August, 1829. An execution, issued thereon 011 February, 1831, which was levied on ’n question, and the same was sold by the sheriff on the 31st March to Evans, and on the 13th of April the and s^er’F made a deed to Evans. Evans then gave in evi-¿once another execution on the same judgment shortly execu-afterwards, and a levy and sale of the same lot to John }y F. Darby — a deed to Darby by the sheriiF, and then a use^eed to Evans by Darby. It was also proved that at the judg-time of bringing this action, Wilder was m possession of of ^0t cll;lest'on‘
Wilder then gave in evidence three judgments of this the court against Priee; one in favor of C. W. Hunter; one the ¡n favor of D. Coalter; the other in favor of the Bank of Missouri — all rendered 15th day of May, 1821. It apput-pears, also, .that the suits in which these judgments were renc^eret^were commenced in the circuit court, and judgand ments rendered therein, and the s,ame were affirmed by that this court.
The following is the form of the judgments in this “ Whereupon, it is considered and adjudged by was the court, that the judgment aforesaid, in form aforesaid 1826 rendered, be in all things affirmed, and stand in full fore® jud°ían<^ virtue; and it is further considered that the said de-Sffendants in error recover their costs and charges by them laid out and expended, and that they thereof have execution.” Executions issued on these judgments shortP. ly afterwards, and these were levied on the lot in ques-pay-tion. On the 28 tli of August, in the same year, it was tS’sold t0 Thomas F. Riddick for the use of the Bank, David Coalter, and Ourcier Ravesis & Co. of Philadelphia. butT[je deputy sheriff, in the name of the principal, on the sa^e’ executed a certificate to Riddick as aforesaid, under ' the act of 1821, for the relief of debtor and. creditor, stating the purchase by Riddick, the consideration, and wouíd be entitled to a deed in two years and a half from the date of the certificate, unless Price, or some other creditor of Price, should redeem within the time.
" The defendant then gave in evidence a deed of the
The defendant then proved that at the time the sheriff’s sale was made to Riddick, and at the time the sheriff made his deed to them, Comegys was a judgment creditor of Price to the amount of $1,135 60.'
The defendant then gave in evidencé to show that John O’Fallon, as the agent of Comegys & Persehouse, paid the judgments against Price on which the property was sold, and that the same was paid with money furnished by Price, and that Comegys & Persehouse were to hold the property till 1st September, 1827, as security for the debt Price owed them, and that he, as agent, had afterwards sold the property to pay said debts, but that a large amount yet remained unpaid. It was not entirely clear, from the evidence, whether O’Fallon was lawful agent to do the business. This evidence the defendant gave to show title out of Evans at the time of bringing the action.
The plaintiff objected to the reception of all the defendant’s evidence. The court overruled all the objections and permitted the evidence to go to the jury. The court then' on the application of the defendant, instructed the jury that the defendant had made out his defence and was entitled to a verdict, which instruction was excepted to.
The plaintiff makes many objections to the defendant’s' proceedings. He made a motion for a new trial, which was overruled. The first reason is, that the verdict is. against law and evidence. 2. The court admitted illegal and improper evidence. 3. The court gave wrong instructions. To reverse the judgment the appellant, Evans, makes the following points by Mr. Spalding, his counsel:
1. First, the certificate of the sheriff’s sale, under the act of 1821, cannot be made the foundation of any title. 1. Because it was not signed by the sheriff, J. C. Brown, but by J. K. Walker, in his own name. 2. Because it was not filed in the clerk’s office in ten days after it was made, as the law required. 3. It was not in conformity with the law, as it gave a wrong time for redemption. 4. Because eight parcels of land were sold in the lump, and the sale was void.
2. .The second point is, that if the sheriff’s sale was not void, yet no right could vest in Comegys & Perse-house, because they were not judgment creditors. 2. Because it was Price who redeemed, and not Comegys & Persehouse, for it was done with Price’s money. ■ 3. It was not pro vied that the ledemption money was paid to persons entitled to it.
3. The third point' made is, that as to the executions issued from the supreme court, there were no judgments to issue them on.
4. The fourth point is, that the deed by the sheriff to Comegys & Persehouse is void, because- when it was made, the act of redemption of 1821 was repealed.
5. The fifth point is, that the instruction of the court to the jury was too broad; it left nothing to the jury to pass on.
6. The sixth point is, that the law of 1821, respecting debtor and creditor, as regarded executions then issued, was unconstitutional, and therefore nothing passed by the sale to Riddick, the sheriff’s certificate to him, and the redemption of the land by Pnce for the use of Comegys & .Persehouse.
I do not deem it necessary to examine all the .objections made to the title set up by the defendant. This title is offered to show title out of the plaintiff, and not to prove any title in the defendant.
With regard to the last question made by the plain-^eiTOr’^ W'^ Sayj ^lat ^ seems to me t0 Per" fectly immaterial whether the act of 1821, be constitutional or not; for if the act be unconstitutional, then the must 'oe that S£de the property, by a execution, was absolute to Riddick without re-demption, and so the legal title would remain in him for ^ use ®oa^ers Hunter, and the Bank of Missouri, un-less he passed the title by his act to Comegys & Perse-house. While the sheriiF’s deed was not yet made to Perm’is redemption to be made and consent-ec^ that Comegys & Persehouse should be substituted for him as grantees under the sheriff’s 'sale. That this sub-stilutioa is allowable by law. see the case of Glasscock v. Bartlett, etal. 4 vol. Mo. R. 68. it seems to mo, therefore, that the sheriff's deed being sufficient in form to .pass the title under the‘circumstances to Comegys & Persehouse, the title is there, if the act of 1821 be unconstitutional.
I will now suppose the act to be constitutional, and proceed to examine the case oa that ground.
As to the first point, the allegation is too general to require a minute investigation. 1 will therefore pass to the second point, which is, that the court admitted illegal evidence.
A part of the evidence said to be illegal, is the sheriff’s certificate of sale under the act of 1821. The act requires the shetiff to give a certificate to the purchasers of the fact of the sale, which certificate shall recite sum for which the land was sold, and the time whea the right of redemption will expire.
This certificate begins in the name of Joseph C. Brown, sheriff, and is not signed by him, but is signed by J. K. Walker, deputy sheriff. It is true, that all acts to be done by the sheriff, must purport to be done by him. This certificate Roes purport to be done in the name the sheriff; there is, then, no defect in this particular. Is it then necessary to prove the act was his — that his name should be signed at the bottom of the paper? I think not, for by the record it appears that the principal made and signed the advertisement' — that the sale of the property would be made on the day the certificate fies it was made. It also appears by the same record that Walker acted as deputy sheriff in several I therefore conclude that he was in truth the deputy iff of J. C. Brown, and that the objection is of no real value,
The next objection is, that the certificate says the property is redeemable in two years and a half, and that the law gives three years for redemption. I consider this a mere mistake and of no consequence. The date of the certificate shows when the sale was made. The law shows when the time of redemption expires more effectually than any certificate could do.. In this matter no one could be misled or injured.
It is next alleged that the certificate was not recorded in ten days from its date. The act does require this to be done, but the certificate '-vas recorded in two or threq days thereafter, and before any possible injury was done ■io a?iy one. There- is, therefore, no force in this objection-
The third reason for a new trial is, that the court gave wrung instructions to the jury.
The court instructed the jury “that the defendant had
I will now attend to the second point made in argu-ment, the whole of which is, that first, Comegys & Perse-house were not judgment creditors, and that thejr did redeem, but that Price did it with his own money-; and third, there is no proof that the redemption money ever ¡n fact paid to Coalter and others,
As to ^rst branch of this point,., I will say, that-was evidence to prove that one of these parties was a judgment creditor; the money was then paid for him; he then came within tire description of the person who had a right to redeem, and the fact that he took a deed to himself, who had a right to redeem, and to another person who had no such right, could be no cause of complaint on the part of Evans, or any one else, if the other had no right to be admitted, then the whole title would, by the redemption, vest in the person having the right to redeem.
The secon£l branch of the second point is, that Gome-fePersehouse did not redeem at all, but that the rewas made by Price, with his money. The evi-dence in the cause shows the truth to be so. The coun-sel for the appellant insists that on this state of facts the is, that the redemption put the title in Price. I will consider the law arising on this point. At the time Price made the redemption, Evans had no lien on the land, nor interest in the same, and whatever interest he has, arose severaI years after this redemption took place. When Price effected the redemption, he had a clear right and full power to place the title where he pleased; he then, worthy motives, placed the title in Comegys & Persehouse, because he was indebted to them in large amounts, and they stipulated that if Price paid them, they would re-convey to him. In this respect the transaction partook of the character of a mortgage. But the
My opinion on this point is, that if the fact should be proved to be that Price did, when the sheriff’s deed was made to Comegys & Persehouse, owe them the money recited in the deed, they have a lawful right to hold the land till the money be paid. And my opinion further is, that whatever interest Price had by way of resulting trust in the lot, at the time the sheriff’s deed was made to Comegys & Persehouse, passed by the sheriff's sale to Darby — atterwards made subject to the debts of Come-gys & Persehouse. I am of opinion, if Price had any resulting benefit in the lot at the time it was last sold to Darby, under whom Evans claims, the same was subject to the law of executions — Revised Code, 1825, 364, sec. 8, which declares that the real estate of the debtor, whereof another was seized to the debtor’s use, shall be liable to execution.
There is one point overlooked by me, which I will attend to, which is, that the sheriff sold the land in a lump. The law does not require the property to be parcelled, and it requires that not more should be sold than may be necessary — R. C. 1825, p. 367, sec. 13.
It is most apparent to me that nothing was 1'ost to Price by selling those eight parcels of land in a lump; the whole only brought about $200; at any rate, not near t0 PaY t*ie executions. If they had been sold separately, they might have brought more, but it is not clear that they would have brought enough to pay the j £ But Price was the man to complain of this, and that complaint should have been made on the return of the execution, or as soon thereafter as it could well be done. This not being done, I doubt if it can now be done.
The third inquiry on the second point is, that there was no evidence the money for redemption was paid to the right person. The evidence on this point seems to be defective.
The third point in argument is, that the executions is-suec^ fr°m this com’t without any judgments. The re-cords show that there were in this court, three several judgments for costs at least. It seems to me, that these executions might well have been quashed on the return, on the application of Price, but that he would not be heard on this question after the money had been paid over hy the sheriff, much Jess can he be heard after this of time; nor do 1 see how it can be right after a lapse of many years, to hold the sale void in a collateral wayn But I think the executions would, at no time, have been quashed as to the costs of this court.
This point is ruled for the appellee.
I will say but little on the fourth point made by counsel, which is, that when the sheriff’s deed was made to Comegys & Persehouse, the redemption statute was repealed. My opinion on this matter is, that if, at any time, the act was repealed, so that things begun under it could not be completed, then the effect would be to leave the property in Riddick, at least in equity, for him to hold in trust for the benefit of his cestui que trust.
The fifth point made in argument has already been disposed of under the third reason for a new trial.
The question as to the unconstitutional character of the redemption act, has already been considered.
The judgment of the circuit court is reversed with costs, aud remanded for further proc< < uinr* i.ho other judges concurring herein.
