Benton County v. Morgan

• Decision Date: 18 June 1901
• Parties: BENTON COUNTY et al., Appellants, v. MORGAN et al
• Court: Missouri Supreme Court

64 S.W. 119

163 Mo. 661

BENTON COUNTY et al., Appellants, v. MORGAN et al

Supreme Court of Missouri

June 18, 1901

Appeal from Benton Circuit Court. -- Hon. W. W. Graves, Judge.

Affirmed.

D Brunges, Charles E. Yeater and T. C. Owen for appellants.

(1) Sections 9833 and 9835, Revised Statutes 1899, are not unconstitutional and void. Under section 36 of article 6 of the Constitution, county courts are made courts of record and have jurisdiction to transact all county and such other business as may be prescribed by law. This court has held that county courts may act both in a judicial and an administrative capacity, and if it be held that the order of sale, and the levy and sale by the sheriff thereunder provided by section 9835, is the exercise of a judicial power it was, notwithstanding, within the power of the Legislature to prescribe this power. State ex rel. v. Elken, 130 Mo. 90; Sears v. Stone Co., 105 Mo. 236. (2) The powers contained in sections 9833 and 9835 were first conferred, respectively, in 1831 and 1852-3, before provisions for the modern deed of trust were enacted, for the purpose of securing a speedy foreclosure of school mortgages. In substance, they now confer practically the same powers on the county court and sheriff as are conveyed by the statutes upon trustees in deeds of trusts. Secs. 4343, 4355, 4356 4357, R. S. 1899. (3) The petition alleges that no order was made by the county court to the sheriff, reciting the debt and interest to be received, and commanding him to levy the same with costs, and no certified copy of any order whatever was ever delivered to the sheriff, and he therefore had no execution or warrant under which to sell. Sec. 9835, R. S. 1899; Honaker v. Skough, 55 Mo. 473; Jones v. Mack, 53 Mo. 150; George v. Middough, 62 Mo. 551; Burton v. Deleplain, 25 Mo.App. 376. (4) The sale was accompanied with irregularities which, taken in connection with the gross inadequacy of the bid, make it wholly invalid, although such irregularities standing alone might be harmless. Holdsworth v. Shannon, 113 Mo. 520; Knoop v. Kelsey, 121 Mo. 648; Nelson v. Brown, 23 Mo. 21; Beadle v. Mead, 81 Mo. 308; Hardware Co. v. Building Co., 132 Mo. 454; 17 Am. and Eng. Ency. Law (2 Ed.), pp. 1002-3. (5) The sheriff should have served written notice on the mortgagor reciting an order of sale and the term to which the same was returnable, because of the fact that the mortgagor lived in another county. Sec. 3199, R. S. 1899; Young v. Schofield, 132 Mo. 664.

W. S. Jackson and V. V. Morgan for respondents.

(1) (a) The Legislature in remodelling the school laws since the adoption of the present Constitution, limiting the powers of county courts, cut out a part of the old law and overlooked section 9835, and the same as it now stands must be construed in connection with the entire code of laws, and when so construed it simply has the force and effect of saying that the county court as the agent of the county having in charge the school funds of the county, may by order of record direct a sale under a school mortgage, if in their judgment a sale should be had. Const., Art. 6, sec. 36; R. S. 1899, art. 5; Snyder v. Railroad, 131 Mo. 579; Grant v. Huston, 105 Mo. 101. (b) There has been a legislative construction of the powers of the county court in these matters of sales under mortgages. In providing for county courts to loan sinking funds the Legislature provides for the kind of security and mortgage to be taken, and what order shall be made by the county court and how the mortgage shall be foreclosed. R. S. 1899, secs. 1801, 1802, 1803 and 1804. (c) Again the Supreme Court has held that the power to sell does not spring from any order of the county court, but from the mortgage itself, which is a judicial construction of the said law. Snyder v. Railroad, 131 Mo. 579; Grant v. Huston, 105 Mo. 101; Mann v. Best, 62 Mo. 795; Wallers v. Senf, 115 Mo. 531; (d) The circuit court alone is the forum in which to try foreclosure proceedings and in which can be entered judgments of foreclosure. Ayers v. Heirs of Shannon, 5 Mo. 282; Lincoln Co. v. McLellan, 3 Mo.App. 312. (2) The order from the county court is simply a direction to the officer to execute the trust declared in the mortgage. Snyder v. Railroad, supra; Grant v. Huston, supra. (3) The law leaves it to the discretion of the sheriff in sales of this character, and the sheriff in this case is nothing more than a trustee in an ordinary deed of trust. This discretion has been clearly recognized in a school mortgage case. Cole Co. v. Madden, 91 Mo. 615; Snyder v. Railroad, 131 Mo. 580. No fraud is charged upon the part of the sheriff and nothing is charged in the petition which would justify the conclusion that the discretion of the officer was not wisely exercised. It is not even charged that he knew the value of the lands sold.

OPINION

In Banc

SHERWOOD J.

This equitable action was brought for the purpose of cancelling 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 $ 125.40, of which $ 40.40 was loaned from the township school fund of township forty, range twenty-one, and of which $ 85 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, and the west half of the northeast quarter, and the northeast quarter of the northeast quarter of section twenty, in township thirty-nine and range twenty in Benton county, Missouri, which said mortgage as provided by section 8057, Revised Statutes of 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 part 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 seventh 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, Revised Statutes of 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 nineteenth 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...