Buchanan v. Tracy

• Decision Date: 28 February 1870
• Citation: 45 Mo. 437
• Parties: PORTER BUCHANAN, Appellant, v. ROBERT TRACY et al., Respondents.
• Court: Missouri Supreme Court

45 Mo. 437

PORTER BUCHANAN, Appellant,

v.ROBERT TRACY et al., Respondents.

Supreme Court of Missouri.

February Term, 1870.

Appeal from Fifth District Court.

Ensworth & Bassett, for appellant.

The sheriff's deed is void, in not having the recitals required by the statute. (R. C. 1855, ch. 63, §§ 54, 56; 18 Mo. 580; 36 Mo. 115; 37 Mo. 194.) The conveyance of land by a sheriff upon sale under execution is a statutory power, and the statute must be pursued strictly; otherwise the conveyance passes no title. (Allen v. Moss, 27 Mo. 364; 9 Mo. 156; 18 Mo. 586-7.)

Vories & Vories, and Vineyard, Woodson & Young, for respondents.

BLISS, Judge, delivered the opinion of the court.

The plaintiff brought ejectment in the Buchanan Common Pleas against Tracy, who occupied under William Atchison. Atchison defended the suit, and showed title by virtue of a sheriff's sale to him upon judgment and execution in his favor against the plaintiff. He also set up a former recovery upon a petition in equity, by the same plaintiff, against the said Atchison, upon which petition judgment was rendered against the plaintiff in the lower court and affirmed in the Supreme Court. (Buchanan v. Atchison, 39 Mo. 503.) The plaintiff claimed that the execution and sale were irregular and void, and passed no title, and that these questions were not adjudicated by the former suit. The Common Pleas gave judgment for defendant, and the District Court affirmed the judgment.

The plaintiff claims as irregularities that the execution upon which the sale was made had expired before the sale; also, that the sale was not made upon the day named in the advertisement The execution was issued August 12, 1863, returnable at the next September term. The levy was made August 15, and the deed and return both show that the sale was made during the December term, 1863, of the said Court of Common Pleas, and on the 4th day of January, 1864, agreeably to that notice, etc. That the sheriff had a right, under the statute of March 23, 1863, extending executions (Acts 1863, p. 20), to sell at a subsequent term, is very clear, especially under the liberal interpretation given to the statute in Stewart v. Severance, 43 Mo. 322. Section 2 provides that executions hereafter issued and levied upon real estate, if the property be not sold at the next term, shall, with the levy, remain in full force until a term is held when it can be sold. For the views of this court upon this statute, it is only necessary to refer to its opinion in said case. But the deed and return of the sheriff show that the sale was made on the 4th day of January, while the notice given in evidence below advertises the land to be sold on the 5th. It was, however, clearly established that the sale was actually made on the 5th, and that the return and recital in the deed were so far mistakes. Does this mistake in the return, followed up in the deed, vitiate the sale? Is it a substantial irregularity, or conclusive evidence of one? or a mere clerical misprision of the officer, by which no one is injured, and which should not affect the legality of his proceedings? The effect of a mistake in reciting the date of the judgment was considered at some length in Stewart v. Severance, and upon full argument it was held not to affect the title. But plaintiff claims that the mistake of a sheriff in his return, and in reciting in the deed his own proceedings, are not entitled to the same indulgence. It is said that the return of the sheriff can not be contradicted; that it must be taken as true, except in a direct proceeding to impeach it. This proposition is, in general, correct; but the return of the sheriff itself cuts no figure in this case. It is not necessary to the validity of the purchase that he make a correct return, or make any return at all.

We find in the reports of Massachusetts and other Eastern States decisions that seem to contradict those of New York and other States in reference to the regularity of legal proceedings under which title is claimed. But this apparent contradiction arises from the retention in those States of the writ of extent, and its application to private debts. Under their system there is no sale, but the execution is extended over the land, which is appraised and transferred to the creditor. All the proceedings are to be recorded, the officer must return them, and it is held that they must show that the requirements of the statute for transferring the property have been complied with. (U. S. v. Slade, 2 Mason, 75; Williams v. Amory, 14 Mass. 20; Metcalf v. Gillett, 5 Conn. 400.) But a different rule prevails where lands are sold upon execution, as in Missouri. The general doctrine upon the subject is given by the Supreme Court of the United States in Wheaton v. Sexton, 5 Wheat. 503. An action of ejectment was brought by the purchaser, who was also the creditor, and the defense was set up that the marshal failed to return his proceedings. The court held that to be no defense, and the judge said: “The purchaser depends on the judgment, the levy, and the deed. All other questions are between the parties to the judgment and the marshal. Whether the marshal sells before or after the return, whether he makes a correct return, or any return at all, to the writ, is immaterial to the purchaser, provided the writ is duly issued and the levy made before the return.” Long before this, in Jackson v. Sternberg, 1 Johns. Ch. 153, the Supreme Court of New York held that it made no difference, so far as the sale was concerned, whether the sheriff's return was correct, or whether he made any return. This has been the general doctrine, and those cases are quoted as authority in the later opinions. No different rulings, so far as the return is concerned, has been had in Missouri, nor is there anything in our statute that would call for one. The objection, then, that evidence contradicted the return, was not well taken.

It is claimed, however--and this is the real question--that as our statute (Gen. Stat. 1865, ch. 160, § 54) requires certain recitals in the deed, the facts must be recited truly. The requirement is plain, and among them must be “the time, the place,...