SHERWOOD, P. J.
This equitable action was brought for the purpose of canceling and setting aside a conveyance made by the sheriff to V. V. Morgan, the purchaser at a sale made by that officer when selling certain land under an instrument commonly called a "school mortgage," default having been made in the payment of the bond secured by such mortgage, plaintiff McPherson being the mortgagor. It was sought, also, in the petition to set aside and cancel a deed from V. V. Morgan to his brother John E. Morgan, Jr., whereby was conveyed to the latter an undivided one-half interest in the land purchased.
The petition is the following: "(1) The plaintiff the county of Benton, by and through D. Brunjes, the prosecuting attorney of said county, together with Charles E. Yeater, associate counsel, and the plaintiff H. C. McPherson, by and through T. C. Owen, his attorney, for their amended petition herein state that the said county of Benton was, and now is, a political subdivision of the state of Missouri, and as such is a municipal corporation entitled to sue and be sued in all the courts of the state. (2) And plaintiffs state that on February 6, 1892, the plaintiff H. C. McPherson borrowed from the said county of Benton the sum of one hundred and twenty-five and 40/100 dollars, of which forty and 40/100 dollars was loaned from the township school fund of township forty, range twenty-one, and of which eighty-five dollars was loaned from the township school fund of township thirty-nine, range twenty-two, and for which he gave his respective bonds, dated February 6, 1892, and due January 1, 1893, with interest from date at the rate of eight per cent. per annum, in the manner and form required by law. (3) And plaintiffs state that on said February 6, 1892, the said H. C. McPherson and Margaret McPherson, his wife, duly executed and delivered to said county a school-fund mortgage in the manner provided by law, to secure the aforesaid loans, belonging to the said township school funds, and by such mortgage conveyed in
fee to the said county of Benton the southeast quarter of the southeast quarter of section seventeen (17), and the west half of the northeast quarter, and the northeast quarter of the northeast quarter, of section twenty (20), in township thirty-nine (39), and range twenty (20), in Benton county, Missouri; which said mortgage, as provided by section 8057, Rev. St. 1889, recited the said bonds, and contained a condition that, if default should be made in the payment of the principal or interest, or any point thereof, at the time when they should severally become due and payable according to the tenor and effect of the bonds recited, the sheriff of the county might, upon giving notice of the time and place of sale by publication for thirty days in some newspaper published in the county, if there be one published, and, if not, by six printed or written handbills put up in different public places in the county, proceed and sell the mortgaged premises, or any part thereof, to satisfy the principal and interest, and make an absolute conveyance thereof in fee to the purchaser, which should be as effectual to all intents and purposes as if such sale and conveyance were made by virtue of a judgment of a court of competent jurisdiction foreclosing the mortgage; and that the said school-fund mortgage is duly recorded in Book 31, at page 282, in the office of the recorder of deeds of said county of Benton. (4) And plaintiffs further state that on the 7th day of March, 1899 the said bonds for the said school-fund loans were due and unpaid, and the county court of said Benton county made an order reciting the debt and interest to be received, and ordering that judgment therefor be entered against said principal and the sureties on his said bond, and that an order of sale of the property aforesaid be made to satisfy the same; and the plaintiffs aver that the said county court did not make an order to the sheriff reciting the debt and interest to be received, and commanding him to levy the same, with costs, upon the property conveyed by said mortgage as described therein; and plaintiffs say that a copy of the order, which was actually made by the county court as aforesaid, duly certified, was never made or delivered to A. F. Prussing, the duly elected, qualified, and acting sheriff of said county; and further say that no copy of an order, as required by section 8059, Rev. St. 1889, was ever duly certified or delivered to the said sheriff; and also say that no copy of any order whatsoever of said court in the premises was ever certified or delivered to the said sheriff, and that the said sheriff had no legal warrant or authority for the sale of said property herein described. (5) And plaintiffs say that on the 19th day of April, 1899, the said A. F. Prussing, sheriff, after having advertised said property for thirty days in a newspaper published in said county for sale on said day, exposed the property for sale at the court-house door in said county, and, notwithstanding said property was susceptible of division, in violation of the law and of his duty in the premises offered the whole of said property for sale, without the request of said mortgagor, in mass; and that the defendant V. V. Morgan, an attorney at law, bid for the same the sum of fifty-two dollars, and the same was struck off to said defendant at the said price and sum, and thereafter the said sheriff conveyed the same to the said V. V. Morgan by his deed recorded in Book 71, at page 416, in the office of the recorder of deeds of the said county. (6) And plaintiffs aver that the said sheriff did not, as required by law, cause a notice in writing to be served on the said H. C. McPherson, plaintiff, the mortgagor aforesaid, stating the fact of the making of an order for the sale aforesaid directed to the sheriff of Benton county, and to what term of court said order as and for such execution was returnable, notwithstanding at the time of said sale the said H. C. McPherson was a resident of Jackson county, Missouri, and the real estate aforesaid was situated in Benton county, Missouri; and plaintiffs aver that no officer or person for said Benton county caused said notice to be served as required by law. (7) And plaintiffs state that the said county did not authorize an agent to bid at the said sale for the protection of school funds as aforesaid, which the said sheriff, A. F. Prussing, well knew on the said day of sale and at the time of the sale. (8) Plaintiffs further aver that on said day of sale, and ever since, the said property conveyed in said mortgage as aforesaid was of the value of eight hundred dollars; and further say that the said bid was for a sum grossly inadequate to the true value of said property, and that the sheriff and the said defendant bidding thereon well knew that the property was sacrificed at such bid; and plaintiffs say that the said sheriff violated his duty first in exposing said property for sale without warrant of law in the manner aforesaid, and next in not then and there stopping said sale for the protection of the...
