50 Mo. 216 | Mo. | 1872
Lead Opinion
delivered the opinion of the court.
The plaintiffs bring ejectment, and derive title from one Dickson, through a mortgage executed November 18, 1863, and a sheriff’s deed to them of October 4, 1869, given upon sale under a foreclosure of the mortgage.
Defendant also derives title from Dickson, through a sheriff’s sale upon execution against him. The judgment satisfied by the execution was originally recovered before a justice of the peace in July, 1862; a transcript was filed in the Circuit Court on the 2d of February, 1863. An execution directed to a constable having been returned nulla bona, one was issued to the sheriff on the first of October, 1863, under which the land was sold and deeded by the sheriff, and through subsequent sales it finally came into the hands of the defendant.
The finding and judgment of the court were erroneous. The lien of the judgment against Dickson dates from the 2d of February, 1863, and the sale under the execution issued upon it passed a perfect title. (Gen. Stat. 1865, ch. 183, §§ 13, 14; Wagn. Stat. 839; Bunding v. Miller, 10 Mo. 445.) There is no evidence to invalidate this sale, and the proceedings upon which it was founded were regular, and quite as formal as we usually find them.
Counsel claim that under our practice we should not look into the evidence, but that upon the facts the finding of the trial court should be taken as correct. The rule is that controverted facts, especially when the evidence is contradictory, will be considered, in actions triable by jury, as correctly found in the trial court. But when documents or records are submitted in evidence, their legal effect is matter of law. The legal effect of the filing and record in the Circuit Court of the judgment against Dickson, with the subsequent proceedings thereon, was to pass the title out of him into the defendant’s grantors; and a finding that the title still remained in Dickson and passed to the plaintiffs, through a mortgage executed after the date of the judgment lien, is contrary to law and evidence. The evidence of title is on paper, and the court committed error in misjudging its legal effect.
The consideration expressed in defendant’s deed shows that he purchased at a high price. The land is doubtless valuable, yet the -plaintiffs bid it in for $5, being notified at the time that the title was in others. They are entitled to no special consideration, and the judgment will be reversed and judgment entered against them in this court.
Rehearing
delivered the opinion of the court on motion for rehearing.
Plaintiffs desire rehearing for the reasons :
These cases show that the issuing of execution to a constable, and return, are necessary to give the Circuit Court and sheriff jurisdiction, and hence the fact can be inquired into collaterally. In the case under consideration the original writ was issued to a constable of Lexington township, and returned by him as served in that township. After the judgment was rendered, an execution was issued to a constable of the same name — doubtless the same person — who returns that he could find no goods, etc., in Lafayette county. Parol evidence was offered upon the trial to show that the execution-defendant lived in another township ; and the question arises whether that fact can be inquired into collaterally.
The purchaser at sheriff’s sale is bound to know that the execution is sustained by a judgment, and by such a judgment as still authorizes its issue. No execution can.issue to a sheriff upon a justice’s judgment unless a previous one has been issued to the proper constable and returned nulla bona, and a transcript has been filed. The purchaser then will examine the transcript and certificates, and may inspect the justice’s- records and files, and in doing so will not be likely to find anything to show the actual residence of the execution-defendant. Neither the summons (Wagn. Stat. 815, § 16) nor the execution (Wagn. Stat. 841, § 4) show such residence, and he will only see that the summons was served, the judgment rendered, and the execution properly issued and returned. He has a right to presume that the defendant lived within the justice’s jurisdiction, and may safely purchase. If the proceedings have not been regular, those interested may attack them directly and show aliunde facts — as that the constable was not an officer of the township where the defendant resided — that should set aside the proceedings. But if the party supposed to be injured sleeps, strangers cannot step in. The purchaser saw enough to authorize the sheriff to sell. In other words, the latter had acquired jurisdiction upon the record, and the sale cannot be treated as void. In this collateral proceeding, the evidence that tended to show that the execution-defendant was
Did this omission in the trial below render the sheriff’s deed a nullity? If it were necessary for the defendant, in order to sustain the deed, to go back of it and show the regularity of the proceedings upon which it was founded, then, under our decisions, he probably failed, inasmuch as he neither produced the original execution nor a transcript of it or of its record. I cannot but think our decisions have been rigid in this regard, and contrast with the liberality shown to sheriffs’ sales under judgments in courts of record. The justice’s execution constitutes no part of the title of the purchaser at the sale by the sheriff, but is a mere preliminary requirement before an execution can issue by the circuit clerk. It would be difficult and often impossible, after a lapse of years —so loosely do many of our local magistrates keep their papers — to find the originals; and as the law does not point out what, except the transcript of the judgment itself, shall
But the defendant did produce evidence made competent by statute, that the justice’s execution was issued and return nulla bona. Section 14 of the article concerning justices’ judgments (Wagn. Stat. 839) provides that a judgment of a justice of the peace, when the transcript is filed with the circuit clerk, shall be “carried into effect in the same manner and with like effect as judgments of Circuit Courts,” etc. Executions are issued and sales are made the same as upon Cir.cuit Court judgments, and the deed of the sheriff has the same legal effect. By section 54 of the act concerning executions (Wagn. Stat. 612), certain recitals are required to be made in the sheriff’s deed, “which recitals shall be received as evidence of the facts therein stated.” In McCormick v. Fitzmorris, 39 Mo. 24, this court held these recitals to be presumptive evidence of the facts recited. The sheriff’s deed offered in evidence recited the facts that an execution was issued by the justice of the peace and that it was returned nulla bona, before the issue of the one upon which he made the sale.
It may be said that this recital is insufficient because it does not show that the justice’s execution was issued to a constable of the township where the execution-defendant resided. The facts recited in the deed are taken from the execution placed in the sheriff’s hands by the circuit clerk, and there is nothing upon the clerk’s records to show the domicile of the execution-defendant. He could only see that the original summons was served in Lexington township by one of its constables, and that an execution was issued to and returned by the same constable. No paper would show the residence, only as it would be presumed from the fact that the service of the summons was in Lexington. Hence, if he stated such residence it would be from inference that the justice did his duty, and not from any facts which the record should furnish him. I cannot, then, consider such recital, or its correctness if made, as essential to the validity of the execution and sale under it.
The motion is overruled.