Butler v. Imhoff

• Decision Date: 29 November 1911
• Citation: 238 Mo. 584,142 S.W. 287
• Parties: BUTLER v. IMHOFF.
• Court: Missouri Supreme Court

142 S.W. 287

238 Mo. 584

BUTLER v. IMHOFF.

Supreme Court of Missouri. Division No. 1.

November 29, 1911.

Rehearing Denied December 23, 1911.

1. EXECUTION (§ 125) — RETURN — TIME FOR RETURN.

Under Rev. St. 1909, § 2175, providing that every execution shall be made returnable at the next succeeding term, unless the plaintiff shall otherwise direct, and in view of section 2228, providing that, where an execution is issued and levied by the proper officer upon real estate, the execution lien created thereby shall remain in force until the end of the second term of the court of the county, where the land is situated, and until a term of court is held, an execution returnable to the September term does not become functus officio at the beginning of that term, and the land may be sold under it thereafter.

2. EXECUTION (§ 311)—"LEVY"—"TAKING."

As a sheriff's deed to land sold under execution need recite only the names of the parties to the execution, the date when issued, and of the judgment, and other particulars recited in the execution, which necessarily includes the fact that notice was given, and as a "levy," is under Rev. St. 1909, § 2195, defined as a "taking," which means to gain control or possession of, in any way, a sheriff's deed, need not recite that a levy was made, for the recital of notice and other formality shows that the land was taken, and hence a deed is prima facie correct although reciting an invalid levy, for that recital will be rejected as surplusage.

3. EXECUTION (§ 305)—SALES—DEED.

Under Rev. St. 1909, § 2237, providing that when any officer shall have levied upon any real estate, and the term of such officer has expired, before the purchaser has obtained a deed thereof, such officer shall have the power to execute a deed just as if his term had not expired, a sheriff may, after the term of his office has expired, execute a deed in lien of an invalid one made to land sold under execution.

Appeal from Circuit Court, Bollinger County; Charles A. Killina, Judge.

Action by O. J. Butler against Jacob Imhoff. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This is an appeal from a judgment for the defendant in ejectment brought in the New Madrid circuit court January 25, 1907, to recover a section of land in that county described as section 5 in township 24, of range 15, and removed to Bollinger county by change of venue. The plaintiff claims through the defendant, who admits his possession, by two sheriff's deeds founded upon one sale made under an execution issued upon a judgment of one Depoyster against the defendant in the New Madrid circuit court for $151.80, entered at the March term, 1900. The execution was issued July 28, 1900.

The September term, 1900, of the New Madrid circuit court adjourned on September 26th, the eighth day of the term, until December 3d, when it again adjourned until December 5th, on which day the land was sold by the sheriff, J. A. P. Willett, to James V. Conran and W. L. Stacy, through whom the plaintiff deraigns his title. The sheriff's deed to them was made the same day, and acknowledged at the following March term. This deed contains all the statutory recitals, stating, among other things, that the sheriff "did on the 19th day of November, 1900, levy upon and seize all the right, title and interest of the said Jacob Imhoff" in the land conveyed and the facts showing due advertisement of the sale. It purported to convey the section in controversy and section 9 in the same township and range. It was acknowledged in open court, and the acknowledgment ordered by the court to be indorsed upon the deed, which was offered in evidence by the plaintiff. The defendant objected to its introduction on the ground that it is void on its face, because it recites a levy made after the return day of the execution. The court admitted it "subject to objection," to which plaintiff excepted.

The plaintiff then offered another deed to the same land to the same grantees, dated December 17, 1906, purporting to be made "for the purpose of correcting the erroneous recital" that "said land was not levied upon until the 14th day of November, 1900." It was, in other respects, like the former one, except that it recited that the levy was made on the 17th day of August, 1900. This deed was made and signed by J. A. P. Willett, as "late sheriff of the county of New Madrid and state of Missouri," and was acknowledged by him as such late sheriff, in open court on the same day, and during the September term of the New Madrid circuit court, and the court thereupon ordered the certificate of acknowledgment to be indorsed by the clerk upon the deed. The introduction of this deed was objected to by the defendant on the ground that the ex-sheriff had no right to make the amended deed more than 5½ years after the acknowledgment of the other, without an order of the court. This objection was sustained, and plaintiff excepted.

Plaintiff then proved that the files in the Depoyster case, including the execution, were either lost or had been destroyed in a fire that burned the New Madrid courthouse in September, 1905, and introduced deeds showing title to whatever interest Conran and Stacy, the execution purchasers, could convey, and offered in evidence a deed of trust from Jacob Imhoff, dated February 16, 1896, conveying the lands to the Alexander County Savings Bank of Illinois, to secure the payment of a note, but without offering to connect themselves with it in any way. He also introduced, without objection, a proof of publication, in the ordinary form, of a notice of sale, under the same execution, of the land in controversy and section 9, in township 24, range 11, to be held September 19, 1900, and evidence tending to show that on the first day of the September term this sale was postponed on account of the mistake in the advertisement describing section 9 as being in range 11 instead of range 15. This notice was first published on August 18, 1900. One of his witnesses, Mr. Conran, who is a lawyer, and was contemplating purchasing at the sale, came to New Madrid on the first day of the September term. He said in his testimony: "I was shown the publication, shown his execution, and he had levied the same prior to the date of the sale in proper time, and on the proper land, and the printer had made a mistake in the description of one part of it, as I remember, and the land was incumbered, and for that reason, that the misdescription had been made on a portion of it, the sale was not had in September. That is my recollection of it."

At the close of plaintiff's evidence, the defendant demurred to it, the demurrer was sustained by the court, to which plaintiff saved his exception, and the court entered its judgment, and after the overruling of a motion for a new trial, to which plaintiff saved his exception, this appeal was taken.

Russell & Deal, for appellant. Wilson Cramer, for respondent.

BROWN, C. (after stating the facts as above).

1. The first question presented in this record and by the briefs of counsel is whether or not the first deed made by the sheriff to effectuate the execution sale under the Depoyster judgment is prima facie valid and effectual to convey the title of defendant. It is attacked solely upon the ground that it recites that the levy was made after the first day of the September term of the New Madrid circuit court to which it was returnable, that the law required that it should, on that day, be returned to and filed in the court that issued it, and that it then, whether so filed or not, became functus officio, so that any action taken by its authority would be void.

The whole subject of the appropriation of the lands of a judgment debtor by execution has, in this state, been pretty well covered by statute, to which we must primarily look for information, and it is only the gaps that are left which we must fill by resort to the rules of the common law which are enacted for such purposes. R. S. 1909, § 8047. The statutes provide (R. S. 1909, § 2175) that "every execution issued from any court of record shall be made returnable at the next succeeding term, unless the plaintiff, or person to whose use the suit was brought, shall otherwise direct, then it shall be the duty of the court issuing the same to make it returnable to the next succeeding term." Whatever this may mean, it is, of course not in the power of either the clerk or court to modify it. These words are simple and direct in their meaning, and neither say nor imply that the execution must be returned on the first day of the term. The Legislature appears to have applied the same interpretation, for in section 2228 it is provided that "in all cases where an execution is or shall be issued and levied by the proper officer upon real estate, and for any cause a sale of such real estate shall not be made at the next term of the court of the county in which such sale is to be made, the execution and lien created thereby shall remain and continue in force until the end of the second term of the court of the county where the land is situated, and until a term of said court is held, at which said real estate may be sold according to law." There is no hint here that any mandate of the Legislature is necessary to keep the execution in force during the return term; that is taken for granted. But the needful thing is done. The...