Turner v. Clark Cnty.

• Decision Date: 30 April 1878
• Citation: 67 Mo. 243
• Parties: TURNER v. CLARK COUNTY, Appellant.
• Court: Missouri Supreme Court

67 Mo. 243

TURNER

v.CLARK COUNTY, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Clark Circuit Court.--HON. JOHN C. ANDERSON, Judge.

The suit was ejectment. Defendant claimed title to the land through a mortgage executed by plaintiff, and foreclosure proceedings thereunder.

J. G. Blair for appellant.

The county had the same right to accept the mortgage and enforce it by suit, as an individual. Gen. Stat. of 1865, p. 225, §§ 1, 2; p. 556, § 9; p. 443, § 13; Han. & St. Jo. R. R. Co. v. Marion Co., 36 Mo. 294. Where the county is beneficially interested, she may purchase real estate. Linville v. Bohanan, 60 Mo. 554.

P. T. Lomax, James Hagerman and R. E. Anderson for respondent.

The county had no power to purchase land, or hold the same, unless it was given to her by statute. It acquired and can assert no title adverse to that of the respondent. Ray Co. v. Bentley, 49 Mo. 236; Holt Co. v. Harmon, 59 Mo. 165.

NAPTON, J.

The question in this case is, whether a bond and mortgage to a county, taken to secure the delinquency of a sheriff and ex officio collector, whose securities on his official bond were at the time perfectly good, is of any validity. The county court, it seems, in this case, had directed a suit upon the sheriff's bond, and during the pendency of such suit, accepted the bond and mortgage now in question, and dismissed the suit against the officer and his securities. The county sued on the mortgage, obtained a judgment of foreclosure, and bought the land sold under the execution, and received a deed, which was duly recorded. It is clear that the county court had no power to exact such a mortgage, certainly none to substitute it for the original bond, and thereby discharge the securities. But the bond and mortgage were voluntarily given to secure an indebtedness to the county. Is there any statute which protects this? In the revised code of 1845, is found this section: “All deeds, grants and conveyances made, acknowledged and recorded as other deeds, conveying lands, tenements, or hereditaments to any county, or the inhabitants of any county and their successors, or to the Governor, or any person by whatever form of conveyance for the use and benefit of any county shall vest in such county in fee simple all the right, title, interest and estate which the grantor in such deed had, at the time of the execution there of in the lands thereby conveyed.”

This section has been retained in the revisions of 1855 and 1865, and is now...