41 Mo. App. 556 | Mo. Ct. App. | 1890
This action of replevin was instituted for the recovery of the possession of a sawmill and appurtenances and two pieces of steamboat pipe. The suit was begun in the circuit court, and plaintiff’s petition was in the usual form. The defendant filed an answer, in which he admitted that the property was in his possession and that he detained it from the plaintiff, but he denied the plaintiff ’ s right to its exclusive possession, and consequently his right to maintain the, action, for the reason that the plaintiff and the defendant owned the property sued for as tenants in common. The cause was submitted to the court sitting as a jury, and the finding and judgment were for the defendant. The plaintiff, being dissatisfied, with the result, has appealed the case to this court.
The evidence in the case tended to show that the property in dispute, except the two pieces of steamboat pipe, formerly belonged to the firm of J. L. Powers & Co., composed of the plaintiff, the defendant and one J. W. Evans ; that the sawmill and other property used in connection with it were purchased by the firm in July, 1884, and that, on the seventh day of January, 1885, the 'defendant bought the interest of Evans in the firm, and thereupon the partnership was dissolved and ceased to do business; that, in February, 1885, Allison & Co. instituted a suit before a justice of the peace in Wayne county against the members of the firm upon a firm obligation (the original summons which was read,
Upon this state of the proof the court gave the following declaration of law : “The court declares the law to be that, if the return of the constable on the summons issued by W. A. Davis, justice of the peace, in the suit of W. S. Allison & Co. against J. L. Powers, G. R. Braley and J. W. Evans, only shows service on J. L. Powers, then the judgment and execution thereon was void as to G. R. Braley and J. W. Evans, and the sale of the property under said execution was void and' did not affect any interest the defendant G. R. Braley had in said property.”
If the judgment before the justice was, as a matter of fact, entered without notice to the defendant and Evans, it is a ■ nullity as to them, but is good as to Powers, who was properly served with notice; therefore the instruction of the court, in'so far as it declared the judgment to be void as to the defendant, was .correct. But we cannot yield our assent to the further conclusion that the sale of the partnership property under the execution against Powers in no way affected the defendant’s title thereto. This question is one of
Our conclusion necessarily leads to the condemnation of the theory upon which the circuit court proceeded. That court was of the opinion that the sale to Kelly could not convey the defendant’s interest or title to the property sold, and that the purchase only made Kelly the owner of the plaintiff’s undivided interest and constituted him a tenant in common with the defendant. Treating the plaintiff as a purchaser from Kelly of this undivided interest, the court applied the general rule that replevin will not lie at the suit of one tenant in common against another, because the one is not entitled to the exclusive possession of the joint property as against the other. Our conclusion is that, if there was a valid judgment against the plaintiff based on an unquestioned firm obligation, and the sale was properly conducted, Kelly obtained by his purchase the full title of the firm, and, if the plaintiff afterwards became the owner of the property by purchase from Kelly, he must be regarded as its sole owner and entitled to its possession as against the defendant.
There are some other minor questions involved, concerning which we ought to indicate our opinion, as the same matters are likely to occur on another trial. The plaintiff offered in evidence a copy of the docket entries in the case of Allison & Co. v. Powers & Co. The copy was made and certified by a justice of the peace, who claimed to be the successor in office of the justice rendering the judgment, and who had in his possession and custody the books and papers of his predecessor. The court held that the copy was not properly certified, and excluded it. In this we think
There was some question raised on the trial, and it has been argued here, concerning the validity of the levy and sale made by C. C. Wills, acting constable of the township. The evidence was to the effect that he was acting constable both before and after the sale, but had not given bond. It nowhere appears that he was a mere intruder; therefore, we must conclude that he was an officer de facto, as his official acts were publicly recognized. The acts of a de facto official, whether judicial or ministerial, are valid so far as the public and third parties are concerned. Ex parte Snyder, 64 Mo. 58; Fleming v. Mulhall, 9 Mo. App. 71; State ex rel. v. McCann, 11 Mo. App. 596. The objection made by the defendant, that a justice of the peace has no authority to appoint a third person to serve final process, goes for nothing, because it nowhere appears in the record that Wills was especially deputized by the justice to make the levy and sale.
But, if it be conceded that the sale by Wills was invalid, yet, under the evidence as preserved in the
Our conclusion necessarily requires a retrial of the case. The judgment will, therefore, be reversed and the cause remanded.