Alexander v. Merry

• Decision Date: 31 October 1845
• Citation: 9 Mo. 514
• Parties: ALEXANDER & BETTS v. SAMUEL MERRY.
• Court: Missouri Supreme Court

9 Mo. 514

ALEXANDER & BETTS

v.SAMUEL MERRY.

Supreme Court of Missouri.

October Term, 1845.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

SPALDING and TIFFANY, for Appellants.

1. The deed from Janes to Loper was improperly admitted in evidence, it not having been sufficiently proved. Rev. Code, 121, §§ 14, 15, 16.

There is a failure in the certificate to allege the identity as the law requires; and also it is not stated that the clerk personally knew the subscribing witness, &c.

2. The deed from Loper to Merry was improperly admitted in evidence, as it was not proved according to law. Rev. Code, 121. The certificate on this deed does not show that the witness proved any execution of it. He merely proves identity.

3. The deed of sheriff Walker, the successor of Brown, who sold to Gamble, passed the title of the lot in question. This point has been considered in the Supreme Court and decided adversely to us. See the cases of Evans v. Wilder, 5 Mo. R. 413, and in 7 Mo. R. 359; Evans v. Ashley, 8 Mo. R. 177.

4. The deed made by sheriff Brotherton on petition and order of the Circuit Court, made in August, 1842, passed the title of the lot in question. Rev. Code, p. 260, § 51; old Rev. Code, p. 370, § 23; Geyer's Dig. p. 269, § 74; 1 Edwards' Com. p. 121, § 49. First. The case of expiration of office is within the equity of the act. 7 Mo. R. 359, at page 366; 8 Mo R. at page 182-3. Second. The acts in 1821-2-3-4, respecting the mode of getting sheriff's deed, on death or removal of sheriff, provided no mode of getting the deed in case of the expiration of his office; though the reasons are as urgent in the latter as former; hence the necessity of construing the word removal so as to embrace the case. Third. The statutes expressly provide for the case. Rev. Code of 1835, p. 385, §§ 36, 38, and p. 379, § 1; Rev. Code of 1825, p. 500, § 13. These acts show that the right acquired by Gamble's purchase was preserved, and the mode of perfecting it, by getting a deed, is also preserved.

5. The deed by Brown, the sheriff (who made the sale), after his office had expired, passed the title. This deed is dated 15th September, 1842. First. There never had been any provision in the statutes for obtaining a sheriff's deed, in cases of sale and expiration of office before the deed made, until the old Revised Code, which took effect in 1825. Second. But there was, as early as 1807, a provision enacted which has been continued down to the present time, providing for getting the deed where the sheriff sells and dies, or is removed, before executing his deed: see Edwards' Comp. 129: Geyer's Dig. 269, and the Codes. Third. In the Code of 1825, and also of 1835, it is provided, that the sheriff if he commences the execution shall complete it; and thus may make the deed at any time after, if he had only began to execute the writ before he goes out of office. Fourth. Hence the inference that the law makers contemplated in 1807, that the sheriff if he had begun to execute the writ, should go on to complete it, even after the expiration of his office. Fifth. The reasons for this inference are, the necessity of the case, the silence of the written law, the propriety of the completion of the writ by the person who commences it, and was actually perhaps executing it when his office expired; and the fact that the same circumstances have caused the legal mind of England to adopt the same unwritten law, as well as of many of our sister States. 5 Har. & Johns. 69, sheriff levies on property and goes out of office, the venditioni exponas must be directed to him and not to his successor. 2 Bac. Abr. 739, the sheriff that commenced execution must proceed with the same; Watson on Sheriff, 61 (5 Law Lib. 55), to same effect; 6 Bac. Abr. 161; 2 Johns. Ch. R. 179, 180; 4 Bibb's R. 21, Allen v. Trimble, a sheriff's deed for lands, made by him after he was out of office, held valid on general principle: 3 Cowen's R. 208. The officer who received and levied the execution must perfect it, the whole proceeding being considered one thing; and therefore the sheriff, though out of office, must receive the redemption money, &c. 3 Cowen's R. 95, Jackson v. Collins, sale on execution of lands completed after sheriff was out of office, he having commenced while in, and held good; 3 Scammon's R. 551, if an execution is levied while it is alive, the sale may be made afterwards, and it is the duty of the officer that levied to proceed and sell, no matter what becomes of the execution; 8 Mo. R. 177, Evans v. Ashley, where this doctrine is recognized ( i. e.), that the officer commencing must complete the execution at common law, even though his office has expired. Sixth. If such were not the law before, yet it became the law, being one of the principles of the common law introduced in 1816: Geyer's Dig. 124, 1 Edward's Comp. 436, act introducing the common law. If the Spanish law was silent on this subject, then this act by its very terms brought in the common law. Seventh. The common law, applicable to past acts, is not repealed by the Codes of 1825 or 1835 as they are prospective, and as those Codes provide for the validity of past acts. Eighth. Our statutes preserve the right.

6. The fact that the giving the deed of sheriff was prohibited by the act of 1821, till the lapse of three years from the sale, does not prevent the application of the principle, that the officer who begins the enforcement of an execution must complete it, because, First. The act suspending the execution of the deed, and providing for the execution by the succeeding sheriff, having been repealed 11th January, 1822 (see Edward's Comp. 863), the common law was restored. Second. The act for the relief of Debtors and Creditors was unconstitutional, and therefore the sale to Gamble was absolute, and Brown had the right to make his deed as sheriff as soon as the sale was made. The judgments on which the sale was made were rendered before the passage of the act, and one of the executions was also issued before the 28th June, 1821, which was the date of the approval of that act. 1 Howard's R. 311, Brown v. Kinzie; 2 ibid, 608, McCrackin v. Hayward. These cases show that any State law, impairing or diminishing the rights of a creditor under a previous contract or judgment is repugnant to the Federal Constitution. The act aforesaid did impair the creditor's right, for under it he could only sell a redeemable interest, with a right of occupancy in the debtor for several years; whereas before, he could have sold the absolute and indefeasible title in fee with immediate right of possession in the purchaser. 5 Mo. R. 518. The court say, that if the act was unconstitutional, then the sheriff's sale would pass the title absolutely.

7. The failure of the sheriff making the sale to mention the purchaser, and describe the lands sold in the return on the execution, does not vitiate the sale. First. The general principle established is, that the title of the purchaser at sheriff's sale is not affected by irregularities. 10 Peters' R. 450, Voorhees v. Bank of United States; 8 Johns. R. 351. It is not affected by irregularity of execution, nor by any matter, subsequent to the sale, occurring between the parties. 1 Cowen, 711. Sale good on execution issuing after judgment rendered a year and a day, without any renewal, even though the execution shall be afterwards set aside. 9 Cowen, 182; 4 Wend. 588-462; 10 Johns. 381; 2 Term R. 44; 1 Cowen, 622. Where the judgment had been previously paid and satisfied, yet the purchaser at sheriff's sale will hold, unless he had notice of such payment at time of his purchase. 1 Johns. R. 45; 9 Cowen, 536-182; 4 Wend. 588; 8 Wend. 676. Second. And this irregularity, if it be one, has been considered by courts, and held not to affect the bona fide purchaser's title. 4 Wend. R. 462. It is not necessary on the return of the execution to describe the lands sold. 1 Johns. Cases, 153. An incorrect return by sheriff of fi. fa. will not defeat the sale or prejudice the purchaser's title. The return is not essential to the title of the purchaser (see page 155). 1 Taylor's (N. C.) R. 10. A sale of land by the sheriff is valid though no return is made of the execution. 1 Murphy (N. C.), 507. The title of purchaser at sheriff's sale is not affected by a false return of the sheriff that another person purchased 6 Har. & Johns. 182. If the return of the sheriff does not set out the name of the purchaser, and there is no description of the land sold, the sale will not thereby be vitiated. The return of the sheriff does not give title.

8. The statute of frauds has no bearing on the validity of Brown's deed; for though that statute requires a memorandum in writing, in order that a sale of lands be valid, and we should admit that it is applicable as well to sheriff's as to other sales, yet it does not enact that sales shall be void, unless the memorandum or deed be made at time of the sale. The question therefore does not arise, which might become important, if no deed had been made, and we now called on the court to cause a deed to be made. It was decided in New York that no title passed by a sheriff's sale, unless some written instrument was executed; and this is true here as well as in New York, for our acts require a deed to be made. But the sale is valid whether a memorandum is made or not, and the court will hold it valid and compel the sheriff to make a deed.

9. Merry, the appellee, purchased with full notice of the sale to Gamble, under which the appellant derives title; all the deeds contain a reference to the sheriff's sale to Gamble. Brown's deed, therefore, relates back to the time of sale as to him, and is a complete defense to the action; so that the judgment below should have been for the defendants. 20 Johns 537, admits the general doctrine, that an estate created by execution of power, is to have relation back so as to take effect from the date of the power; but this is a fiction which is...