Boyd v. Jones

• Decision Date: 31 January 1872
• Citation: 49 Mo. 202
• Parties: S. S. BOYD et al. Respondents, v. ALFRED JONES et al., Appellants.
• Court: Missouri Supreme Court

49 Mo. 202

S. S. BOYD et al. Respondents,

v.ALFRED JONES et al., Appellants.

Supreme Court of Missouri.

January Term, 1872.

Appeal from Lafayette Circuit Court.

E. L. King & Bro., for appellants.

There are no recitals in the deed as to how Price got out of office, or showing that Adamson had any authority to make this deed. If Price was out of office as contemplated by section 58 of the execution law (Wagn. Stat. 612, § 58), then it was clearly the duty of Adamson to receive the executions, “and proceed to execute the same in the same manner as if such writs had been originally directed to him;” and to do this he must have made a levy, which he did not do, or at least there is no recitation that he did. If Price was out of office as contemplated by section 60 of the execution law (Wagn. Stat. 613, § 60), then he should have gone on and made the sale and deed; and if he could have done so, then Adamson could not, because both could not exercise the same power at the same time. If Price was out of office as contemplated by section 61 of the execution law (Wagn. Stat. 613, § 61), then in making a deed he should unquestionably have recited that Price had died, or had been removed from office, or was otherwise disqualified from acting, reciting even how or in what way he became disqualified from acting, so that it would appear clear upon the face of the deed that the predecessor was disqualified, and also that he (Adamson) had authority to make the deed. The deed of the sheriff should have contained all the necessary recitals to show clearly and beyond question that the law had been complied with, and that the officer had the authority to make the sale and deed; this deed, being deficient in these particulars, should not have been admitted in evidence.

Wallace & Mitchell, for respondents.

I. A defendant in execution, and those acquiring possession under him, cannot defeat the recovery in ejectment of the purchaser at sheriff's sale by setting up an outstanding title. The reason of the rule, say the authorities, when applied to the defendant in the execution, is obvious enough. The purchaser buys the possession, if nothing more, and the defendant must give up the possession; and a person holding under the defendant in the execution, or getting possession from him, stands in no better attitude than the defendant in the execution. (Jackson ex dem. Klein v. Graham, 3 Caines, N. Y., 188-9; Laughlin v. Stone, 5 Mo. 43; Page v. Hill, 11 Mo. 161-3; Maston v. Bush, 10 Johns. 223; Jackson ex dem. Witherell & Hyde v. Jones, 9 Cow. 192-3; Jackson v. Scott, 18 Johns. 94.) The reason of the rule equally applies where the defendant has in the mean time, after execution sale, delivered up possession to another. (10 Johns. 224; Page v. Hill, 11 Mo. 162-3.)

II. The sheriff's deed, offered and read in evidence by respondents, contains all the recitals required by the statute, and is evidence of the facts therein stated. (Wagn. Stat. 612, § 54; McCormick v. Fitzmorris, 39 Mo. 24.) This deed is not impeached by appellants, and is conclusive, in this case, as to the facts recited therein. (Stewart v. Severance et al., 43 Mo. 322, 332.)

III. The successor to a sheriff must proceed to do all things remaining to be done in relation to execution of process commenced and partly executed by his predecessor. (Duncan v. Matney, 29 Mo. 368; Carr v. Youse, 39 Mo. 346; Wagn. Stat. 611, § 51; Jeanes v. Wilkins, 1 Ves. Sr. 195; Merchants' Bank of St. Louis v. Harrison et al., 39 Mo. 333, 443.)

ADAMS, Judge, delivered the opinion of the court.

This was an action of ejectment for lands in Lafayette county, brought by respondents, as purchasers at execution sale, against the appellant, Alfred Jones, defendant in the judgment and execution under which the sale was made. Thomas Jones was, after the commencement of the suit, on his own application, made a co-defendant. The answer denied the respondents' right to the possession, etc. The respondents, to maintain their right to the possession, produced a sheriff's deed, the recitals of which show that at the May term, 1864, several judgments had been rendered in the Lafayette Circuit Court against Alfred Jones, and that executions issued on these judgments, and were put into the hands of the then sheriff, Price, who levied the same on the lands in dispute, and, before any sale, delivered the said executions to his successor, Adamson, who sold the lands under those executions at the November term, 1865--that being the first term at...