Buchanan v. Atchison

• Citation: 39 Mo. 503
• Parties: PORTER BUCHANAN, Plaintiff in Error, v. WILLIAM ATCHISON, Defendant in Error.
• Decision Date: 28 February 1867
• Court: United States State Supreme Court of Missouri

39 Mo. 503

PORTER BUCHANAN, Plaintiff in Error,

v.WILLIAM ATCHISON, Defendant in Error.

Supreme Court of Missouri.

February Term, 1867.

Error to Buchanan Circuit Court.

Bassett and Ensworlh, for plaintiff in error.

H. M. & A. H. Vories, for defendant in error.

The only question, it is supposed, which will be seriously raised in this court is as to whether Atchison was bound under our statute to give Buchanan a special personal notice of the issue and levy of the execution against Buchanan, the statute requiring such notice to be given, when the execution is issued to a different county from where the parties reside and the judgment is rendered.

I. No notice was necessary in this case of the issuing and levy of the execution other than the usual advertisement by the sheriff, the defendant not being a resident of another county in this State than the one where the execution was issued within the meaning of the statute--R. C. 1855, p. 746, § 46.

II. The execution in this case was issued in the ordinary way to the county where the defendant was served with process, and in which the judgment was rendered--Harris v. Chouteau et als., 37 Mo. 165.

FAGG, Judge, delivered the opinion of the court.

This was a proceeding in the Buchanan Court of Common Pleas, and the petition of plaintiff in error is in the nature of a bill in chancery. It alleges that defendant, by false and fraudulent representations in reference to the enforcement of a debt due and owing to him by plaintiff, and for the recovery of which a suit had been duly instituted and was then pending in said court, and by failing to give the notice required by section forty-six of the “Act in relation to executions” (R. C. 1855), had fraudulently procured the sale of certain real estate belonging to the plaintiff situated in the said county of Buchanan. It alleges further that the plaintiff was at the time of the sale, and for a long time previous thereto had been a resident of the county of Platte in this State, and therefore entitled to the benefit of the provisions of the act referred to. It is further alleged that the defendant at said sale became the purchaser of said real estate for a uominal sum merely; that it was in point of fact worth more than double the amount it sold for, with all the liens and encumbrances upon it; tenders to the defendant the amount of the purchase money with the balance due upon his judgment; avers that he is ready and willing to pay all charges and costs upon said property that had been paid by the defendant; and asks that the sale made by the sheriff be set aside, the deed cancelled, and for general relief, &c. The answer denies all the allegations of fraud and fraudulent representations; alleges that plaintiff was at the time of the...