Bray v. Marshall

• Decision Date: 30 April 1882
• Citation: 75 Mo. 327
• Parties: BRAY v. MARSHALL, Appellant.
• Court: Missouri Supreme Court

75 Mo. 327

BRAY

v.MARSHALL, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

AFFIRMED.

The certificate of acknowledgment to the sheriff's deed was as follows: I, B. Appleby, clerk of the circuit court in and for Dade county, do hereby certify that on the 2nd of November, 1866, Samuel E. Shaw, sheriff of Dade county, appeared in open court at the October term, 1866, and acknowledged the execution of the foregoing deed, which was duly entered of record in book 4, on page 221.

Witness, B. APPLEBY, Clerk, Etc.

The instruction complained of, directed that “In estimating the value of the rents and profits, the jury will find what number of acres were in cultivation for each year, and how much rents for each year per acre were worth, and the aggregate sums for the several years will be the measure of damages which the plaintiff is entitled to recover.”

DeArmond & Thurman for appellant.

The certificate of acknowledgment is defective in not stating before whom the acknowledgment was made, nor that the person making it was personally known to the court to be the sheriff and person who executed the conveyance, nor that the sheriff personally appeared. The instruction in relation to estimating rents and profits trenched upon the right and duty of the jury to ascertain the damages from the evidence in their own way.

J. C. Cravens for respondent.

HOUGH, J.

This is an action of ejectment. The plaintiff recovered judgment in the court below, and the defendant has appealed.

The petition is in the ordinary form. The answer admits that the defendant is in possession, and denies the other allegations of the petition. Both parties claim title under one Michael Keeney. The plaintiff claims under a sheriff's deed to himself, dated October 30th, 1866, founded upon a proceeding by attachment against said Keeney. The defendant claims title under a deed to himself and one Hardin, executed by said Keeney on the 14th day of September, 1867, and a subsequent conveyance from said Hardin to himself. Both Hardin and the defendant had actual notice of the sheriff's deed to plaintiff when they purchased from Keeney.

1. ATTORNEY: irregularity in judicial proceedings not collaterally questionable.

Several irregularities appear in the record of the proceedings by attachment, but none which render the judgment void, and none which present questions of sufficient gravity to merit any extended discussion. Indeed from the statement of counsel they seem to be referred to chiefly because the attorney who conducted the proceeding by attachment, was the purchaser at the execution sale. But that circumstance is of no consequence in the present proceeding. Nor would it be otherwise if the plaintiff in the attachment suit had himself become the purchaser. Holland v. Adair, 55 Mo. 40.

2. ATTACHMENT: order of publication.

Counsel for the defendant err in their statement that the order of publication was made without any affidavit authorizing it. The affidavit filed for the purpose of obtaining the writ of attachment itself contained a statement of all the facts necessary to entitle the plaintiff to an order of publication. It is only where the affidavit for the attachment is based upon grounds other...