97 Mo. 98 | Mo. | 1888
This is a suit to redeem ninety acres of land, situate in Madison county, from a foreclosed mortgage. In 1858, Patrick Tierney and his wife Mary executed a mortgage on the land to secure a debt due L. M. Fox. Patrick died in 1861, leaving a will by
1. It is contended by the plaintiff that the sheriff’s sale to Grigsby is void, because three terms of court intervening between, the date of the execution and the term of the court at which the property was sold, that the execution mas, functus officio. The execution was issued on the tenth of February, 1864, returnable to the April term, 1864, of the Madison circuit court. Sheriff Grigsby turned the execution over to Foster, his successor in office, in December, 1864; and Foster as sheriff sold the property on the thirteenth of April. 1865. It is agreed that no term of the Madison circuit court was held between the September term, 1863, and the April term, 1865 ; so that the sale took place at the first term of the court which was held after the execution was issued. As sheriff Grigsby had not executed the writ, when his term of office expired, it was his right and duty to turn it over to his successor, whose duty it was to proceed to execute the command thereof. R. S. 1855, p. 749, sec. 59. The second section qf the act of March 23, 1863 (Acts of 1862-3, p. 20), kept the execution alive and in full force and effect until a term of court was held at which the property could be sold. Stewart v. Severance, 43 Mo. 322; Groner v. Smith, 49
2. The plaintiff claims a further right to redeem from the fact that he and his trustee were not defendants to the foreclosure suit. In the absence of any statute on the subject, he should have been a party defendant, and if not, his right to redeem would not be foreclosed. But our statute of 1845 and 1855 enacts: “ In case of the death of the mortgagee or his assignee, or of the mortgagor, whether before or after action 'brought, the personal representative of the deceased party shall be plaintiff or defendant, as the case may require.” 2 R. S. 1855, p. 1088, sec. 4. Under these statutes it has been held that a foreclosure judgment may be revived against -the administrator of the mortgagor. Riley's Adm'r v. McCord's Adm'r, 21 Mo. 285. The administrator of the mortgagor is a necessary party, and if the suit be brought against the widow and heirs alone, the petition should be dismissed. Miles v. Smith, 22 Mo. 502. In the case of Perkins v. Woods, 27 Mo. 547, there had been a judgment of foreclosure against the administrator of the mortgagor; the heir of the
The iudgment is affirmed.