Thornton v. Boyd

25 Miss. 598 | Miss. | 1853

Lead Opinion

Mr. Justice Yerger

delivered the opinion of the court.

At the general election held on the 1st and 2d days of November, 1841, Wyatt Eppes was elected sheriff of Marshall county. On the 29th day of September, 1843, a venditioni exponas in the case of Howell & McKendree v. Bourland & Early et al. came into his hands, commanding him to sell a certain tract of land named therein, and on the 6th day of November, 1843, he sold the land, and Hamilton Thornton, then the owner of the judgment, became the purchaser. At the general election, held on the 6th and 7th of November, 1843, Eppes was reelected sheriff of Marshall county, and held the office till the election in November, 1845, when McCarroll was elected. Eppes never made a deed for the land during his continuance in office. But McCarroll, his successor, by virtue of an order made by the circuit court of Marshall in August, 1846, made a deed to Thornton, who brought an action of ejectment for the land, and on the trial offered to read this deed in evidence, which on motion the court refused to be done.

■ The deed is said to be invalid upon three grounds : —

First. Because Eppes was not sheriff of Marshall county on the 6th day of November, 1843, the day on which he sold the land.

Second. Because having held the office during his whole official term without having made the deed, there was no such vacancy in the office of sheriff as under the statute authorized the court to direct a deed to be made by his successor.

Third. Because the order of the circuit court directing the deed to be made by McCarroll, his successor, it is void on its face, not showing the, existence of those facts necessary to justify such an order.

We will consider these questions in the order above stated; and

1. Was Wyatt Eppes sheriff of Marshall county on the 6th day of November, 1843 ? Pie was elected sheriff at the general election held on the 2d and 3d days of November, 1841, and whether he continued sheriff under that election till the general election held on the 6th and 7th of November, 1843, depends upon the construction to be given to the constitution, art. 5, sec. 19, which is in these words : “ A sheriff, and one or moi-e coroners, a treasurer, surveyor, and ranger, shall be elected in each county by the qualified electors thereof, who shall hold their offices for two years, unless sooner removed, except that tifie coroner shall hold his office until his successor be duly qualified.”

The plaintiff in error contended that the period of “ two years" has reference to the general elections, and that the terms of the various officers named therein, extend from one general'election to another. On the other side, it is said that the “ years ” fixed for the term of office are calendar years, and ■that the term of the sheriff’s office is twice 365 days.

As the general elections are to be held biennially" on the first Monday and day following in November, it is apparent, if ■the term of office is held to begin on the day succeeding the general election, and to continue for two calendar years; that in some years there would be a period of several days in which there would be a vacancy in all the county offices except that ■of coroner, while in other years there would be two sets of •officers, each having a right to execute the different offices in ¡the county.

To -obviate this manifest inconvenience and confusion, the ■counsel for the defendant in error has made a most able argument, for the purpose of showing that the framers of the constitution only fixed a period for holding general elections in the State, in order to avoid the inconvenience of frequent elections .occurring at irregular times, but that they did not intend to fix the .general election as the period when the official term of .the officer should begin ; but left that matter to be regulated by ■the legislature in such manner as would be most convenient in •practice.

If this were a case of the first impression, and we were settling for the first time the construction o'f the constitution on this point, we are not prepared to say that the obvious advantages of the latter method, while it would notnecessarily violate •either the letter or spirit .of that instrument, would not justify its adoption.

But as both in practice and in the decisions of the courts, a idifferent construction has been adopted, and for a long time ■acquiesced in, we do not feel at liberty to disregard it.

In Smith v. Halfacre, 6 How. R. 582, it was said by Chief Justice Sharkey that it was .designed by the constitution, that “ a general election .of all officers who were to be chosen by the people, should be held periodically in every county in the State, and that it was quite clear that the convention looked to the first Monday in November biennially as the day of the general election ; and that the tenures of the different officers are regulated with a view to that time as a period at which they should begin and end.”

Again, in the same opinion, after quoting the 5th sec. of art. 3d, of the constitution, he says: “We have in this clause an additional recognition of the first Monday in November biennially as the time for the general election; and we have also conclusive evidence, that it was intended that the term of all officers should regularly expire at that time.” The opinion of the court is concluded by him in the following language: “ In every possible aspect in which we have been enabled to place the question, the conclusion irresistibly forces itself on us that the convention intended that all terms of office should begin and terminate with the regular election.” Afterwards, in the case of Hughes v. Buckingham, the attention of the court was again called to this subject, and it was then stated that “ the officers who are elected-by 'the people, necessarily hold from the time of the general elections, and for the sake of uniformity in the operation of the government, their terms of office expire at a general election.” 6 S. & M. 632.

Although the direct question presented by this record did not arise in the foregoing cases, and the language which we have quoted, may be regarded more as dicta than decisions by the court upon this point, yet when we recollect the high source from which it emanated, and that the uniform practice in the State has accorded with the interpretation of the constitution there given, we feel constrained to adopt a similar conclusion. In our opinion, therefore, the term of office which Wyatt Eppes was elected to fill at the general election in November, 1841, did not expire until the termination of the last day of the general election held in November, 184-3. He was, consequently, in office on the 6th day of November, 1843, when he made the sale of the land in controversy.

Although it is true that in ordinary dealings and discourse, when the period of a “ year ” is mentioned, it will be intended that “a calendar year”-was spoken of; yet that signification is not necessarily always and at all times to be given to that word. On the contrary, the period of time intended to be designated by the term “ year,” is to be determined by the subject-matter and the context; and that signification is to be given which accords with the intention of the party using it.

Accordingly, we find that in the case of Pavis v. Hiram, 12 Mass. R. 262, where it became necessary to fix the meaning of the word “ year,” used in a statute having reference to the term of an officer, Parker, Ch. J., said: “We are all of opinion that the term one ‘ whole year,’ used in the statute, must be understood to be a political, or rather a municipal year, viz., from the time the officer is chosen until a new choice takes place at the next annual meeting for the choice of town officers, which may sometimes exceed, and sometimes fall short, of a calendar year.”

2. This brings us to the consideration of the second question. Had the circuit court power to authorize McCarroll to execute this deed? It is said, it did not, because Eppés held his office to the full end of the term for which he was elected; and, therefore, the contingency had not arisen which authorized the court to direct his successor to make a deed for land sold by him.

The solution of this question depends upon the construction which we may give to. the statute of the 24th of February, 1844, (Hutch. Code 618). That act provides, that in all cases where a sheriff' or other officer shall sell land by virtue of legal process, and “shall have died,removed from the State, or otherwise vacated his office, without having made and executed a deed,” the court shall direct his successor or other inc'umbent of the office to make the same.

It is contended by the counsel for the appellee, that the term « vacate his office,” does not embrace the case of an officer who fills the office during the whole of his official term. We cannot assent to this position. The necessity and policy of the law extends equally to this class of cases as to those in which the office is vacated by death, removal, or resignation, and we would not, therefore, exclude it from the operation of the law unless the words were so plain and unambiguous, as to leave no room for any other construction. Such we do not conceive them , to be when the reason, policy, and necessity of the law is considered. Nor, indeed, does the literal and usual meaning of the expression “vacate an office,” necessarily require'such an interpretation. “ To vacate an- office,” as defined by lexicographers, among other things, means to quit possession of, or to put an end to it.” If the object of this law is considered, it must be manifest, that when .the legislature conferred upon the court the power to direct the successor of the sheriff to make a deed, when it appeared “ that his office had from any cause, been vacated,” &c., that they intended it to apply to all cases where the tenure of office of the sheriff who sold the land had been “ put an end to ” from any cause whatever, and, therefore, in our opinion, it applies to the case of a sheriff, who holds to the end of his official term, and goes out of office without having made the deed.

3. But it is said, that the jurisdiction conferred by this statute upon the court being special and limited, unless it appears upon the record in the manner prescribed by the statute, that the facts existed which authorized the exercise of the power, the order of the court is a nullity. This, we believe, is the. correct rule in relation to. the exercise of every special and limited jurisdiction.

The power conferred upon the court by this statute, is special and limited, and such as the court could only exercise in the particular cases, and under the circumstances named in the statute; and we think the record should show the existence of the facts which justified the action of the court.

By looking to the statute, it will be seen, that the court is only authorized to act in the premises “when’it appears from the return of the sheriff or other officer, that the sale, was made and the purchase-money paid:”

The execution, which was filed with the petition for the order in this case, has been lost; but it was proved, that the return only shqwed the sale to Thornton fpr $200, but did not show that he paid the purchase-money. It is' true, that it was also proved that the execution had been transferred to Thornton, and that there was a credit indorsed on the execution dated November 6, 1843, signed by him, for $161.60, being the amount of his bid, less $38.40, amount retained by the sheriff for costs. But this credit so indorsed on the execution and signed by Thornton, is no part of the return; and while we have no doubt that it was sufficient to satisfy, and did satisfy the court, that the purchase-money had been paid, yet it is not the kind of evidence which the statute required of the payment.

Although a strict adherence to the statute in this case may appear to operate with severity, yet if we once depart from the requirements of the law in any case, we cannot see where we can fix the limit hereafter of the evidence which the court shall require, that the purchase-money has been paid. The court, in our opinion, had no authority on the evidence before it to direct Me Carroll to execute the deed, and there was no error in excluding it from the jury.

Let the judgment be affirmed.

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Dissenting Opinion

Mr. Justice Fishek

delivered the following dissenting opinion : —

As I differ with the majority of the court, as to the proof establishing the return of the sheriff on the venditioni exponas, under which the land was sold, I will, as required by law, briefly state my reasons for such difference.

I contend, that the return as proved, when construed according to legal rules, shows that the purchase-money was paid, or what is equivalent thereto.

1. The sheriff is presumed to have done his duty. If there had not been a complete sale of the land, to wit, a compliance with the bid, he should have so returned on the writ, for the obvious reason that another writ could have issued to sell the land. Under the return made, no other vendi. could issue, and why ? because the return showed a sale already made.

When the sheriff returns that a sale was made, the name of the purchaser, the amount bid, and returns no forfeiture of the bid, the law presumes that it was complied with; and a fact presumed by la tv is the same as a fact stated and proved.

2. The credit was indorsed by Thornton on the day of the sale, whence we must suppose that the execution was then in the hands of .the sheriff’. Every indorsement made thereon while it was in his hands, must be;, supposed to have been made by his authority, and if a credit for his protection, because no person can legally write any thing thereon, unless authorized by the sheriff. Thornton may have produced proof that he was the plaintiff’s agent or assignee, at least the law would presume this much.

3. The proof is certainly clear, that $38.40 had been paid for costs. Now, the proof is just the same as to the payment of the whole $200. It is that the sheriff retained out of the sum bid, the $38.40. If he retained this sum out of the $200 the whole sum must have either been in his hands or under his control.

I, for these reasons, contend that the return, when legally construed, shows that the money was paid; and, therefore, think that the court below erred on the point.

My opinion is, the judgment ought to be reversed.

A petition of a re-argument was filed by the counsel for appellant in this case, but was refused by the court.