Lord v. Johnson

102 Mo. 680 | Mo. | 1890

Black, J.

— This case is before us on a judgment sustaining a demurrer to the petition. The plaintiff Lord executed to defendant Johnson a mortgage upon certain real property; and subsequently he made a deed ■of trust upon the same land to secure a debt to Matson and Griffin. Thereafter Johnson commenced a suit of foreclosure, making Lord, Matson and Griffin defendants. Judgment of foreclosure was rendered in 1882, under which the property was sold, and Johnson became the purchaser. This is a suit in equity to set aside that sale and to redeem.

The foreclosure judgment and the sheriff’s deed are conceded to be formal. But it is insisted that the process issued, and by which the property was sold, is worthless, because it was simply an order of sale, whilst the statute provides that the execution issued upon a judgment of foreclosure “shall be a special fieri facias, in accordance with the judgment.”

*682The question, therefore, to be determined is, whether the writ is simply an order of sale, or whether it is, in substance and effect, a special fieri facias.

The writ runs in the name of the state and is addressed to the sheriff of Jackson county. It then professes to and does set out an exact copy of the judgment of foreclosure. The judgment sets out a description of the mortgaged property, a finding of facts as to the execution of the mortgage and subsequent deed of trust, and the amount still due on each ; and it is then, in substance, adjudged, that the plaintiff Johnson have and recover of defendant Lord the sum of $11,743.56; that the mortgaged property be sold ; that the interest of all of the defendants be barred and foreclosed by such sale ; that out of the proceeds of the sale there be first paid to the plaintiff his debt and interest, next to Matson and Griffin the amount of their debt, and the balance, if any, to Lord. The command of the writ is in these words: “These therefore command you that you cause said described real estate to be sold, and that you have the proceeds thereof before the judge of said court on the first day of the next October term thereof to satisfy said judgment in the manner therein as directed, and that you certify how you execute this writ. ’ ’

A general fieri facias in form recites the judgment and then proceeds to say : “These therefore command you, that of the goods, chattels and real estate of the said —— you cause to be made the debt and costs aforesaid,” etc. It need not be in these exact words; the substance and effect of them is all that is required. R. S. 1879, sec. 2336. A special fieri facias differs from the general writ only in this, that it points out and specifies the property to be sold, and pursues and follows the judgment in respect of the disposition of the proceeds arising from the sale.

Now while the command of the writ in question does not in words say, “These- therefore command you *683that of (describing the property) you cause to be made the debt,” etc. ; still it does command the officer to sell the specified property and have the proceeds in court “to satisfy said judgment in the manner therein directed.” To satisfy what judgment % The judgment set forth and copied in the writ. The writ, .it will be seen, is not simply an order for the sale of real estate, like those issued in proceeding for the sale of lands in partition; but its object is the collection of the debt specified in the judgment therein recited. To determine the true character of the writ we must look to it as a whole, recitals included ; and in doing this we have no hesitancy in pronouncing it a special fieri facias within the purview of the statute defining what the form of the execution shall be on foreclosure judgments. Lord had the right to satisfy this writ at any time before a sale, and thereby satisfy the judgment and prevent a sale of ■ his property.

In Kritzer v. Smith, 21 Mo. 296, the judgment was properly a general one in an attachment suit, and it was held error to award a special execution against the attached property; but that case and the others cited from this court do not have any special bearing upon the question in hand.

The judgment is affirmed.

All concur.