Gilbert v. Renner

95 Mo. 151 | Mo. | 1888

Norton, C. J.

This case is before us on defendant’s appeal from a judgment of the circuit court of Audrain county sustaining plaintiff’s motion to set aside a sheriff’s sale of land made to defendant under an order of the county court of said county.

It appears that, in 1879, one David A. Gilbert executed a school fund'mortgage to Audrain county on the land in question to secure the payment of certain school money borrowed by him, by the terms of which it was agreed that if default should be made in the payment of the principal or interest, or any part thereof, when the same should become due and payable, that the then acting sheriff should have power without suit, after advertising the property as therein provided, to sell and convey the same to the purchaser. It appears that said Gilbert, having made default in the payment of the debt secured by the mortgage, the county court of said county, on the eighth of May, 1885, after reciting in an order the mortgage, the land conveyed by it to secure the payment of school fund bond given by Gilbert, his default in its payment, ordered and directed the sheriff to foreclose said mortgage and sell the property conveyed by it for so much as would be necessary to pay the debt, interest, and cost. Under this order, the sheriff proceeded to advertise the property, and on the fifth of June, 1885, sold the same at public vendue at the court-house door, during the sitting of the circuit court, to the defendant, and executed, acknowledged, and delivered, kiln a deed to the land sold. The sheriff made report of sale under said order to the county court. On the twenty-fourth of June, 1885, plaintiff, O. A. Gilbert, a stranger to the proceeding in the county court, claiming to have bought twenty acres of the land of said D. I. Gilbert after his mortgage to the county, and previous to the sale made by the sheriff, filed his motion in the circuit court of Audrain county to set aside the sale and deed made to defendant, on various grounds not necessary under the view we take of the case to be stated.

This motion was resisted by defendant on the ground, among others, that the circuit court had no jurisdiction to hear the motion, as the sale was made under an order and judgment emanating from the county court. This point is well taken, under the ruling of this court in the case of Mellier v. Bartlett, 89 Mo. 134, where it is said the general rule is, that every court has the exclusive control .over its own process and no other court has the right to interfere with or control it; that the sheriff of the county to which an execution is sent from the circuit 'court of another county is as t o that writ the officer of the court from which the writ emanated.

Under the authority cited the judgment will be reversed, and if said sale is void, as alleged in the motion, and plaintiff is in possession of the land in controversy, as alleged, he will be remitted to his equitable action to remove the cloud cast upon his title by the deed made in virtue of such sale.

All concur, except Ray, J., absent.