43 Mo. 238 | Mo. | 1869
delivered the opinion of the court.
In 1849 defendant borrowed $500, school money, of the County Court of Saline county, and secured it by mortgage, under the provisions of the school act. In 1864, by neglecting to pay the interest, the debt had accumulated to over $1,000 ; and the County Court, without notice to defendant, ordered the sheriff to sell the land, according to the provisions of the mortgage. The plaintiff
At the trial the defendant objected to plaintiff’s evidence, on the sole ground that the County Court made the order, and the sheriff proceeded to advertise and sell the premises, without serving an order upon him or giving him notice of their proceedings. No other irregularity is set up. The Circuit Court of Saline county gave judgment for the plaintiff, from which defendant appealed to the District Court, which affirmed the judgment, and thence the case is brought by error to this court.
The school act of 1839, under which the loan was made and the mortgage given, in regard to the character of the mortgage and mode of enforcing collections, ivas similar to the present law. Article II, section 16, of the act provided that the bond given for the money should be recited, and that it should “ contain a condition that if default shall be made in the payment of principal or interest, or any part thereof, at the times when they shall severally become due and payable, according to the tenor and effect of the bond recited, the sheriff of the county may, without any suit on the mortgage, proceed and sell the mortgaged premises, or any part thereof, to satisfy the principal and interest, and to make an absolute conveyance thereof in fee to the purchaser; which shall be as effectual, to all intents and purposes, as if such sale and conveyance was made by virtue of a judgment or decree of a court of competent jurisdiction foreclosing the mortgage.” Section 24 is as follows : “ Whenever the principal and interest, or any part thereof, secured by mortgage containing a power to sell, shall become due and payable, the County Court may make an order to the sheriff reciting the debt and interest to be recovered, and commanding him to levy the same, with costs, of the mortgaged premises, which shall be described as in the mortgage; and a copy of such order, duly certified, being delivered to the sheriff, shall have the effect of a' special fieri facias on a judgment of foreclosure by the Circuit Court, and shall be proceeded on accordingly.”
The defendant founds his claim that an order of the County Court should be served on him before a fieri facias can issup,
The defendant’s counsel strongly insist that the Legislature has i no power to authorize the summary proceedings provided by section 24, without notice; that every man is entitled to a day in
The judgment of the District Court is affirmed..