McClurg v. Dollarhide

51 Mo. 347 | Mo. | 1873

Adams, Judge,

delivered the opinion of the court.

This was ejectment for land situated in Hickory County. Both parties claimed title under Alfred and W. D. Foster.

The plaintiff rested his case on a Sheriff’s deed.

The defendant then offered a Sheriff’s deed for the same premises, made under an execution issued from the County Court upon a judgment of the County Court, given for the principal and interest of a School debt under the statute of 1855, which was excluded because the sale appeared to have been made at the County Court and in vacation of the Circuit Court. The exclusion of this deed is the only point raised by this record.

Whilst it is the duty of the courts to protect purchasers at Sheriff’s sales, it is also their duty to see that no injustice is done to the parties to the execution. We know of no provisions in our statutes authorizing a sale to be made of a debtor’s land, under an execution like this, during the session of the County Court, and whilst the Circuit Court is not sitting. This execution was issued, on a judgment of the County Court, recovered under section 29, Eevised Laws of Missouri 1855, page 1425, by which such judgment is to have like effect as a judgment of a Circuit Court. Section 30, same page, provides for the foreclosure of a Mortgage, before the County Court, and provides that a copy of the order, foreclosing the Mortgage, shall have the same effect as a fieri falias on a judgment of foreclosure in the Circuit Courts, and shall be proceeded on accordingly by the Sheriff. Section 27, on same page, provides for the recovery of interest on School debts, by issuing a warrant in the nature of a fieri facias, a judgment of a Circuit Court, except that such war • rant shall be returnable in thirty days from its date, and except also, that such Sheriff shall have power to sell during the sitting of the County Courts, &c.

These provisions taken together, clearly show that the only execution under which a Sheriff can sell lands during the sessions of a County Court, is the one in the nature of a fi.fa., issued under section 27.

The other executions, authorized to be issued from the County Court, have the force and effect and must be proceeded on in like manner, as executions issued by the Circuit Court. It is so well known that lands cannot be sold on executions except during the sessions of the Circuit Court, that a notice to sell at a County Court would be wholly disregarded, and a sale under such notice might be ruinous to all parties for want of bidders. If a Sheriff can disregard the plain provisions of the statute, by selling at a County Court, he might do so when no Court at all is in session, or at a place where Court is never held.

In my judgment, it is essential to the validity of a Sheriff’s sale that the law in this respect should be pursued; and if it be violated the sale and deed are void whether the question is raised in a direct or a collateral proceeding; see Merchants Bank of St. Louis, et al., vs. Byrd Evans, et al., Mo. ante p. 335.

It is'urged here that the plaintiff did not prove that the defendant was in possession, withholding the premises at the commencement of the suit. But the bill of exceptions does not present this point, as it no where appears that the evidence contained in the bill was all the evidence given. In the absence of anything to the contrary, we must' presume that the judgment of the Circuit Court is right.

Judgment affirmed.

Judge Sherwood not sitting. The other Judges concur.