Jones v. Rogers

• Decision Date: 26 June 1905
• Citation: 85 Miss. 802,38 So. 742
• Court: Mississippi Supreme Court
• Parties: JOSEPH T. JONES ET AL. v. WILLIAM O. ROGERS ET AL

38 So. 742

85 Miss. 802

JOSEPH T. JONES ET AL. v. WILLIAM O. ROGERS ET AL

Supreme Court of Mississippi

June 26, 1905

FROM the chancery court of Harrison county, HON. STONE DEAVOURS Chancellor.

Rogers and others, appellees, were complainants in the court; below Jones and others, appellants, were defendants there. From a decree overruling demurrers to the bill of complaint the defendants appealed to the supreme court. The facts are fully stated in the opinion of the court.

[For the decision of a motion in the case, see Harrison County v Rogers, ante. 578.]

Decree reversed and cause remanded.

Ford &amp White, Bowers, Neville & Griffith, and W. G. Evans, Jr., for appellants.

The whole case of appellees, as exhibited in this bill, rests upon the assumption that the alleged sale by the United States marshal at Jackson on October 28, 1839, vested in complainants either the entire legal and equitable title or such an equitable title as would enable complainants to maintain a bill to divest the legal title out of the person now holding same and vest it in complainants, and incidental thereto obtain such other relief as might be necessary to render a decree on the merits of this contention effective.

The court will observe that there is no allegation in this bill that any United States marshal ever executed or delivered to complainants' ancestor a deed conveying, or purporting to convey, this or any other land, but simply that a sale was made by such marshal on October 28, 1839, and that John Martin became the purchaser, and that he, Martin, paid the bid. They allege no facts, such as the execution of a conveyance by the marshal pursuant to a sale under an execution, so as to raise the presumption that in truth and in fact a levy and sale had been made pursuant to law, but on the contrary, stand upon this so-called marshal's return to establish said facts, other than the allegation of the payment of the bid, and then invoke the rule that the court will presume the execution and delivery of a deed from the facts established by this return as shown in the exhibit to the bill. This so-called return is not signed by any person claiming or assuming to act as a United States marshal, nor by any person styling himself as the deputy or properly authorized agent of such officer. It is signed simply "Wm. M. Gwin, Marshal., per F. S. Hunt." Now, who F. S. Hunt was, nowhere appears in this record. Whether he was a deputy marshal or one of those convenient personages who do what is commonly called the "heavy standing around," is wholly unexplained, and we insist that his signature of the name of the United States marshal to this document is insufficient to elevate this so-called return to the dignity of an official "certificate" or "attestation" so as to bring it within the purview of sec. 1796 of the code.

If we are mistaken in the position that this so-called return on this exhibit is not prima facie evidence of the performance of the acts therein referred to by a United States marshal, then we insist that, treating it as a return of such officer and taking all the facts stated to be true, these facts show a disregard of a plain statute and render a sale as recited utterly void.

Statutes fixing the time and place of sales by sheriffs under execution are mandatory, and a sale made at a time or place other than that fixed by law is void. Koch v. Bridges, 45 Miss. 257; Loudermilk v. Corpening, 101 N.C. 640; Moody's Heirs v. Moeller (Tex.), 13 Am. St. Rep., 839. It appears in the report of Moody Heirs v. Moeller, supra, that a sale was made by a United States marshal, under an execution at law, in the city of San Antonio; but instead of making the sale in front of the county courthouse door (the Texas statute being the same as our own on this subject), the marshal made it in front of the federal building, standing on the opposite side of the street from the county building. The court held that the statute fixing the time and place of sales was mandatory, and that place meant in front of the county courthouse door, not some other place in the same community or vicinity, and that the sale was not simply voidable, but void.

By sec. 3 of the act of congress, approved May 19, 1828, it was provided:

"That writs of execution and other final process issued on judgments and decrees rendered in any of the courts of the United States and proceedings thereon shall be the same, except their style, in each state, respectively, as are now used in courts of such state; provided, however, that it shall be in the power of the courts, if they see fit in their discretion, by rules of court, so to alter final process in said courts as to conform the same to any change which may be adopted by the legislature of the respective states for state courts." Quoted from opinion in Beers v. Houghton, 9 Pet., 337. This statute is the origin of sec. 914 of the present Rev. Stats. U. S.

By sec. 4 of a special act of congress, approved February 16, 1838, it was provided:

"That the marshal of the several districts of the state of Mississippi, in addition to the several sale days now allowed by law, may be authorized to sell property at the courthouse in each county on Monday of each week, and on the first and second days of each term of the district court; and he may, at the written request of the defendant, change the sale of property to the place where the United States court for the district is holden; provided, in the opinion of the marshal, the interest of the plaintiff is not compromitted thereby."

The state statute which governed in matters of this character, except in so far as modified by this special act of congress, provided that all sales of land should be made at the courthouse of the county and on the first and third Mondays of every month. Sec. 17, Act June 22, 1822; How. & Hutch. Dig., 633.

The courts, both state and federal, have, in passing upon the validity of execution sales made by federal marshals, uniformly held that the federal officer in the execution of process of this kind must conform strictly to the state law. In Smith v. Cockrell, 6 Wall., 756-759, the supreme court of the United States held that the failure of a United States marshal, in selling property under execution in the state of Kansas, to have an appraisal made in accordance with a statute of Kansas, rendered the sale void and conferred no title. See also Moody's Heirs v. Moeller, 72 Tex. 635 (13 Am. St. Rep., 839); Norneman v. Norris, 47 F. 438.

There is no special presumption hedging around the acts of United States marshals in executing process, even though hoary with age and come to us from so respectable a source as the administration of Martin Van Buren. And if it appear from the alleged return on this ancient document that the marshal disregarded a plain provision of law, then his acts were void and incapable of transmitting title. It is manifest that this marshal had no legal power or authority to make a sale, under execution, of land then situated in Hancock county, in Jackson, except upon the written request of the defendant, James McLaran. And if the United States marshal held such request, the only place in Jackson where he was authorized to make such sale was in front of the building or place where the United States court was held at the time. Now, if the court will inspect this exhibit, it plainly appears that this marshal made two different sales of land under it. The first sale was made on the 7th day of October, 1839, in front of the statehouse in Jackson, of several tracts or bodies of land in various counties, and this first sale, as appears by the express language of the so- called return, was made at Jackson on a written request of the defendants in execution. The alleged sale of the lands in controversy, as appears by this so-called return, was made three weeks later, or on the 28th of October, 1839, in Jackson, but not one word is said about its having taken place there because of any written request or other request of defendant in execution. The law having fixed the place of such sales at the county courthouses, and the marshal being required to make such sales there, except where a defendant should make a written request otherwise, we insist that the existence of such written request was absolutely necessary, and that the court cannot presume in a case like this, where all of the acts of the officer are set out, and where it is silent on this point, that such request existed. We undertake to say that in a case of this kind, where no deed was ever executed and where the sole evidence of such sale is the so-called return, the return itself is not sufficient proof of the existence of such a vital and jurisdictional fact, and that the writing itself must appear.

The word "place" in this special act of congress, authorizing sales at the place where the United States court is held, had reference to the building in which it was held. The object of the rule requiring a strict compliance with statutes fixing the time and place of judicial sales would altogether be defeated by holding that place within the statute meant anywhere in the municipality or vicinity of the court. As held in Moody's Heirs v. Moeller, supra, it means the building in which the court is held, and that a sale in the same town or city is not a compliance with the law. There is nothing, either in the bill or the return on the execution, to show where the federal court was holden in 1839.

It has been expressly held in Cooper v. Granberry, 33 Miss 117, that a return on a writ of execution reciting a purchase by a person named does not operate to transfer the title, but simply confers a right, if payment is made, to compel either the sheriff or defendant in execution, as the case may be,...