67 Mo. 151 | Mo. | 1877
This was an action of ejectment for a lot in the city of Cape Girardeau, in which judgment was rendered for defendant. Plaintiffs and defendant both claimed under D. E. Steinbeck, as the common source of title. The defendant claimed title under an execution sale of the interest of the common grantor, Steinbeck, in the lot sued for, and on the validity of this sale and the deed made by the sheriff in pursuance thereof, depend the rights of the parties. The circumstances of the sale are as follows: On April 19th, 1822, one Conrad Schultz obtained a judgment In the circuit court of Cape .Girardeau county, against D. E. Steinbeck, for the sum of $3,790.91 debt, and $804.92 damages. On the 23rd of December, 1825, Steinbeck having in the meantime died, this judgment was, by scire facias revived against his executor.- The judgment on scire facias concludes as follows : “ It is therefore considered by the court that the said judgment be and stand revived against the said Thomas Byrne, executor as aforesaid, and that the said plaintiff have execution against the said Thomas Byrne, executor as aforesaid, for the said sum of three thousand seven hundred and ninety dollars and ninety-one cents for debt, and the sum of eight hundred and four dollars and ninety-two cents for damages, together with legal interest thereon from the nineteenth day of April, A. D. 1822, (the day of the rendition of the judgment aforesaid,) until now, and that he have and recover against defendant his costs and charges ir and about his
The execution issued upon this judgment was in conformity with the second section of the revised statutes of 1825, in relation to executions, and commanded the officer-“that of the goods and chattels of the said Daniel E. Stéinbeck, deceased, remaining in the hands of the said Thomas Byrne, executor as aforesaid, to be administered, you cause to be made the aforesaid debt, damages, interest and costs, and if sufficient goods and chattels which were of the said Daniel E. Steinbeck, deceased, cannot be found in your county, then of the lands and tenements which' were of the said .Daniel E. Steinbeck, deceased, at the time of his death, you cause to be made the debt, damages and costs,” &c. Under this execution the lot in question was sold, and the ancestor of the defendant became the purchaser.
• But another view may be taken of this matter. The execution under consideration is, in itself, unexceptionable.- It is .just such-an execution as the law required to be issued. The court, the date, the parties, the amount and the general character- of the judgment are all correctly stated. • "Whatever difficulty exists, -arises from the directions contained in the judgment, as to the manner Of enforcing the execution. ■ In our opinion, the judgment might with equal propriety, haye undertaken to,-prescribe the time and manner of advertising the sale, the mode of conducting the sale, the form of the return, and the character of the conveyance to be executed by the sheriff. These matters are all prescribed by law,- and are not subject to regulation or change by the court, nor-within the compass of its jurisdiction. The requirement in question was en-.. tirely superfluous, and although not in ■ conflict with the law, as far as it went, it was, viewed as a judicial decree, not-simply an error, but unauthorized and void.
Affirmed.