Chandler v. Bailey

• Decision Date: 15 November 1886
• Citation: 1 S.W. 745,89 Mo. 641
• Parties: CHANDLER and others v. BAILEY and others.
• Court: Missouri Supreme Court

1 S.W. 745

89 Mo. 641

CHANDLER and others v. BAILEY and others.

Supreme Court of Missouri.

November 15, 1886.

1. EJECTMENT — JUDGMENT — EVIDENCE — BILL OF EXCEPTIONS.

Where an action of ejectment is brought by the heirs of C., and in the bill of exceptions no evidence is given to connect them with C.'s title, a judgment in their favor, on that ground alone, will be reversed.

2. EVIDENCE — SHERIFF'S DEED — INDORSEMENT BY CLERK OF ACKNOWLEDGMENT.

Where a sheriff's deed has indorsed upon it the clerk's certificate of acknowledgment taken in open court, the indorsement is sufficient to entitle it to be read in evidence, without producing any record entry of the acknowledgment.

3. SAME — PRESUMPTION — SHERIFF'S SALE — ADVERTISEMENT — DEED — RECITALS.

Where a statute requires a sheriff to give notice of a sale, by advertisement in a daily or weekly newspaper, and his deed to a purchaser recites a notice "by advertisement in the Gazette-Tribune, a newspaper published in my said county," it will be presumed, nothing appearing to the contrary, that the paper was a daily or weekly one.

4. ATTACHMENT — SALE — SHERIFF'S DEED — PRIOR DEED.

Where a deed for property has been executed and delivered before the levy of an attachment, and was thereafter duly acknowledged and recorded before a sale of the property by the sheriff under the attachment proceedings, it will take precedence over the deed made by the sheriff, and vest in the purchaser a valid title.

Appeal from Ozark circuit court. Action in ejectment to recover land. Judgment for plaintiffs. Defendants appeal.

Livingston & McClendon, for respondents, Chandler and others. D. H. McIntyre, for appellants, Bailey and others.

BLACK, J.

The plaintiffs recovered in ejectment, and the defendants appealed. Both parties claim title under E. W. Bailey. The plaintiffs' title is a sheriff's deed to A. B. Chandler, executed by virtue of a sale made under a special execution issued on a judgment in an attachment suit of A. B. Chandler against E. W. Bailey. The attachment was levied on the property on the sixteenth December, 1874. Judgment on publication was rendered twentieth April, 1876, and the sale occurred seventeenth April, 1877. The defendant William Bailey claims by virtue of a deed to him from E. W. Bailey, dated August 1, 1874, claimed to have been acknowledged on twenty-first September, 1875, and recorded April 19, 1876.

The bill of the exceptions purports to give all of the evidence, but there is not a word tending to show that the plaintiffs are the heirs of A. B. Chandler. There is nothing to connect them with his title, and for this reason the judgment must be reversed. As the cause will be remanded, the plaintiffs can amend their petition so as to show that the lots are in the town of Gainesville, and thereby make the petition correspond with the proof; for there seems to be no dispute but the property sued for is located in that village.

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