Huff v. Morton

94 Mo. 405 | Mo. | 1887

Brace, J.

A statement of this case, which is now before this court for the second time, will be found in the former opinion rendered at the October term, 1884. Huff v. Morton, 83 Mo. 399. The only new feature presented in this record results from the introduction by the defendants, on the retrial, of a deed of trust from M. W. Foster to Wallace Pratt, trustee, dated December 20, 1872, and a deed from said trustee to' defendant, The Northwestern Mutual Insurance Company, lessor of its co-defendant, Morton, dated August 2, 1874. The introduction of these deeds and claim of title under them by defendants renders it unnecessary to notice the defects alleged to exist in plaintiff’s claim of title from the government to Foster, he being the common source of title from whom both parties claim. Smith v. Lindsey, 89 Mo. 76; Miller v. Hardin, 64 Mo. 545.

The court held that the plaintiff’s title, under the sheriff’s deed and sale made on the twenty-fifth of February, 1874, was superior to that of the defendant under the deed of trust of Foster, of December 20, 1872, and in so holding the court was right. The judgment against Foster was rendered December 23, 1870. On thé second day of October, 1873, a fieri facias was issued thereon and on the same day levied on the premises in controversy. The writ was returnable to the October term following. At the return term the sale was stopped at the request of the attorneys for the plaintiff and defendant in the execution, and the writ returned not satisfied, the return showing the levy and the reason why the sale was not made. Thereupon the court ordered that a writ of venditioni exponas issue for a sale of the premises. On the twenty-third day of January, 1874, the writ issued reciting the execution, levy, return, and order, and the sale was made at the February term, that being the next ensuing regular term of the court after the October term.

The lien of the judgment would have expired December 23, 1873. The levy of the writ of fieri facias on the premises on the second day of October, 1873, had the effect of continuing the lien of the judgment until the execution oí the writ. Bank of Missouri v. Wells, 12 Mo. 362. It is provided by section 2389, Revised Statutes, 1879, (sec. 51, p. 646, Gr. S., 1865), that “in all cases where an execution is * * * 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 the lien thereby created shall remain and continue in force until the end of the second term of the court of the county where the land is situate and until a term of said court is held ; at which said real estate may be sold according to law.”

If the lien of the judgment Avas, by virtue of the levy, continued until the execution of the Avrit, and the writ could be lawfully executed by a sale of the premises before the end of the next term after the return term, if, for any cause such sale was not made at the return term, then the officer had just the same power to sell the property levied upon, after the return of the writ and before the end of the next term, as he had to sell at the return term. Until the end of the second term, under the statute, the lien of the judgment, the life of the execution, and the power to sell were preserved by the levy. The writ of venditioni exponas is not a writ of authorization. It may be called a branch of the writ of fieri facias, commanding the officer to execute that writ. It gives the officer no authority not previously possessed by him. Notwithstanding the return of that writ, he could sell the property levied upon as well Avitliout as with a venditioni exponas. Freeman on Executions, secs. 58, 59.

The sale was not made by virtue of any authority conferred upon the officer by that writ, but by virtue of the levy of the execution issued upon a valid and subsisting judgment which was a lien upon the premises at the time the levy Avas made, which lien, as well as the execution, was in force at the time of the sale by the terms of the statute, and the deed of the sheriff to the purchaser at such sale vested in the plaintiff a title superior to that of the defendant acquired under the deed of trust executed by Poster two years after the date of the judgment. Hicks v. Ellis, 65 Mo. 176; Stewart v. Severance, 43 Mo. 323; Wood v. Messerly, 46 Mo. 255.

The court committed no error in refusing defendants’ instructions — the fifth for the reasons above stated, and the fourth and sixth for the reason that there was no evidence on which to base them.

The judgment of the circuit court is affirmed.

All concur, except Ray, J., absent. -