18 Mo. 580 | Mo. | 1853
delivered the opinion of the court.
1. This cause will turn upon the sheriff’s deed executed to Chambers, under whom Tanner, the plaintiff below, claims. A great deal was said in the argument and many cases were cited, to show the length that this and other courts have gone in support of sales made under judicial process. But the precise point involved in this litigation, we are not aware has ever been decided by this tribunal. The deed of the sheriff to Chambers recites that, agreeably to an advertisement accompanying the deed, at the court house door in the city of St. Louis, during the --- term of the-■ court of-, for the ■year eighteen hundred and forty-, he exposed to sale, &c. The 38th section of the act concerning executions (R. 0. 1835) enacts, that when real estate shall be taken in execution, it shall be duty of the officer to expose the same to sale at the court house door, on some day during the term of the Circuit Court for the county where the same is situated, having previously given twenty days’ notice of the timé and place of sale, &c. The 45th section of the same act makes it the duty of any officer who shall sell any real estate, to make to the purchaser a deed, tó be paid for by the purchaser, reciting the names of the parties to the execution, the date when issued, the
When judicial proceedings have been assailed for irregularity, with a view to destroy titles acquired under them, the courts have all been liberal in intendments for their support. So likewise great indulgence has been shown to the acts of officers in the sale of lands under judgments and decrees, when the party relying on those acts was not aware of the irregularity, and had no control of the officers in their performance. It will not be maintained, that the sale by the sheriff of real estate under a judgment is the execution of a statutory power, and that his authority must be strictly pursued, in order to render the sale valid. This is the principle applicable to the sale of collectors for the non-payment of taxes. But the authority of the sheriff, in sales of real estate, depends on the judgment and execution, and the compliance with certain acts which, for the protection of debtors, the law requires to be performed previous to the sale.
Cases, with respect to recitals in sheriffs’ deeds, have been cited from the Ohio Reports. These are Armstrong v. McCoy, 8 Ham., and Perkins v. Dibble, 10 Ohio, 433. In the first of these cases, the objection to the deed was, that it did not recite all the executions that issued upon the judgment, before the sale was effected. This objection was not maintained. The court held that it was only necessary that the deed should show that the sheriff acted under the execution. It was observed that this question had been frequently raised in New York, and it had been uniformly decided in favor of the sheriff’s deed. In the last of the above cited cases, it was said that the law regulating judgments and executions, requires that the deed of conveyance to be made by the sheriff or other officer, shall recite the execution or the substance thereof, and the names of the parties, the kind of action, the amount and date of term of. the rendition of each judgment, by virtue whereof
The case of the President & Selectmen of Natchez v. Minor, 10 Sme. & Mar. 244, which is so frequently referred to, with a view to show the liberality in which courts indulge, in order to uphold titles acquired at sheriff’s sales, decides that a total omission of the sheriff to give the notice,, or his giving it in a mode entirely different from that prescribed by law, will
The invalidity of the deed involved in this controversy may be maintained, without impugning the authority of any of the above cited cases. Upon an examination of the statute of Ohio above cited, it will be found that it requires the recitals of the judgments and executions and various matters of form which, in no wise, can affect the sale for good or for evil, so far as the debtor or purchaser is concerned. The interpretation it has received is, that it is directory, beyond what was necessary to show that the sheriff had authority to act. Our statute goes further, and not only requires the recital of the authority to sell, but also of the performance of other acts which, were necessary to make a valid sale. It requires that a sheriff’s sale shall be made during the term of the Circuit Court. This was for an obviously wise purpose. The deed must recite the time, place and manner of sale, and the recital of these facts in the deed is made the evidence that the law has been complied with. It was contemplated that the deed, upon the face of it, should show that the sale had been made at such a time as the law supposed would produce the most beneficial result. The recital of the mere day of sale would not satisfy the law, without showing that the day was during the term of the Circuit Court. This has been the uniform practice in this state. Then, without undertaking to say what recitals are directory and what essential, we may safely declare that the recital of those of the enumerated facts, the non-performance of which would render the sale void, is necessary.
If a sale was made at a time other than during the term of the circuit or other court required by law, there can be no question, that a purchaser taking a deed under such a sale, would not be permitted to recover the land intended to be conveyed by it. The sheriff, in making a a conveyance, is not disposing of his own property. He is selling the property of a debtor in invitum for the benefit of the creditor. The sale is required
We are sufficiently impressed with the importance of upholding titles acquired at sheriff’s sales. A well grounded confidence in their validity will prevent sacrifices of property ; but considerations of this kind would always be urged with a better grace by those, who themselves have imparted a little confidence in such titles. Here is an estate said to be worth $30,000 sold for five dollars. Under such circumstances, a purchaser is scarcely warranted in claiming a liberal indulgence to the defects of his title paper.