7 Mo. 359 | Mo. | 1842
This case is reported in the 5 th volume of the Missouri Reports, page 313. Since the reversal of the former judgment it lias been tried again in the circuit court, and is a second time brought here by appeal. In addition to the facts stated in the former report of the cause, it appears that Evans, on the last trial, in order to show title in himself, produced in evidence a judgment which Adam Everly had recovered against Risdon H. Price, in the St. Louis circuit court, on the 25th day of August, 1S20, for the sum of $914.15. On this judgment an execution, issued, dated the 26th December, 1820, and made returnable to the first Monday of April following. After the return day named in the writ, the sheriff advertised the lot in dispute for sale, and after giving twenty days notice, sells the same during that term of the court. It appears from recitals in the advertisement, and the sheriffs deed, that a levy was made on the lot prior to the return day of the execution, and a sale advertised, which did not take place, for the reason it was countermanded by the plaintiff in the execution. Hempstead became the purchaser of the lot at the sale, and received a deed, bearing date May 29th, 1821, and afterwards by a deed in which it was recited he had purchased the lot as agent for certain creditors of Risdon H. Price, and that Price had made arrangements with those creditors, and thathe, Hemp-stead, had no equitable title to the lot, and that it was claimed by several creditors of Price, conveyed the same to Gustavus A. Bird, without recourse, in consideration of the sum of $25, paid by him to defray the expenses of the trust incurred by Hempstead, in trust to secure to him, Bird, the said sum of twenty-five dollars, and then for the use of R. H. Price, subject to the claims and liens of his creditors. Bird afterwards by a deed, inciting the circumstances under which he took the lot from Hempstead, and the trust to which it was subject, and that Evans had recovered a judgment against Price, and that the outstanding title was an obstacle to his rights, conveys the lot to Evans, the appellant, for the sum of $28.75, to hold the same in trust for the said
The court are divided in opinion as to the validity of the title to the lot thus made out by the appellant Evans, and the opinion of the majority is based on a point that was made when this case was formerly before the court, and which at that time it was deemed unnecessary to'determine. It will be recollected, that the appellee, to show an outstanding title in a third person, and thereby defeat the recovery of the appellant, gave in evidence several judgments and executions therein issued from the supreme court of this State? that these executions were executed under the law of the 28th June, 1821, for the relief of debtors and creditors, and Thomas F. Riddick became the purchaser. In pursuance of said act, a certificate of purchase was granted to Riddick. This certificate was signed by the deputy sheriff. Pers-ehouse, a judgment creditor of Price, redeemed the lot, and took a deed for the same to himself and Comegys. This deed was executed by I. K. Walker, the successor in office to J. C. Brown, who was the sheriff when the lot was sold to Riddick. This deed was dated the 26th May, 1826. The act for the relief of debtors and crediiors was repealed on the 11th January, 1822, with a saving of the validity of all proceedings had under the same before the repealing thereof. Something was said in the argument of the cause, about the constitutionality of the act of 1821, for the relief of debtors and creditors; but the question here under consideration will not be affected by the manner in which the question of its validity may be determined. If the law was unconstitutional, then it would seem that the whole interest in the land would pass to the purchaser, and he would take it without any equity of redemption, either in the debtor in the execution or his judgment creditors: but then there must be some instrument in writing, conveying the title to the purchaser, for it has been determined that a sheriff’s sale is within the statute of frauds and perjuries. Simonds v. Catlin, 2 I. R. The purchaser then must obtain a title either from the certificate of the sheriff, or by a deed executed in conformity with thegeneral law on the subject of executions.
Judgment reversed.
Opinion of
Many of the points in this case have been determined by this court when it was before the court in 1838. See 5th Mo. Rep. p. 313. The judgment of the circuit court having been reversed, and the case remanded, it is a second time brought before this court, and, as now presented, involves the consideration of a new title setup by Evans. This title is derived from a judgment and sale in favor of one Adam Everly against Risdon H. Price. This judgment was in August, 1820; execution issued 26th December, 1820, returnable the first Monday of April following. The return of the sheriff was as follows : “Rec’d. 28th December, 1820, John K. Walker, D. Sh’ff. Entered on E, book No. 2. Interest $33.34; single comm. $15.16; ain’t. $981.18. Made by the sale of the property described in the enclosed advertisement, to C. S. Hempstead, on the first day of May,1821, the sum of one hundred and ninety-three dollars. The costs were paid by the defendant, Price, previous to the sale.
John K. Walker, D. Sh’ff.”
The advertisement above referred to, was as follows:— “Sheriff’s sale. By virtue of one writ of execution to me directed, from the circuit court of St. Louis county, returnable to the April term of said court, 1821, (which is now in session,) in favor of Adam Everly against Risdon II. Price, on which certain property of said Price was advertised to
For Jos. C. Brown, Sh’ff.”
. The sheriffs deed made to Hempstead, the purchaser, recites, that a levy was duly made in March, I82Í, as appears by advertisement accompanying the execution, &c. It appears, then, from the execution, return, and advertisement, that the sheriff first advertised the property in March before the return day of the writ, but that no sale took place in pursuance of that advertisement, in consequence of directions given by the plaintiffs attorney. It appears, also,that during the term, and after the 6th day of the same, the sheriff again advertised the property for sale, and that it was sold under the last advertisement. The validity of this proceeding is questioned, on the ground that after the return day of the writ the sheriff had no power to levy on the property, and consequently that the sale under that levy conveyed no property. A levy, it appears to be agreed on both sides, is nothing more than an appropriation, by the sheriff, of the land designed to be levied on, indicated by some act, such as advertisement, or hand-bills. It is also conceded that when the levy is made before the return day of the writ, any act necessary to complete the sale, performed after the return day of the writ, will be valid, at least in favor of a bona fide purchaser. But where there is no levy before the return day of the writ, I understand the law to be well settled, that a subsequent levy will be void. I have seen no authority which calls in question this doctrine. As the áct of 7th Nov. 1808, however, allows the sheriff until the last day of the term to make his return, it is supposed that the writ is kept alive during the whole term, not only for the purpose of selling the property advertised previously to the commencement of the term, but for the purpose of mak-