Carr v. Youse

• Decision Date: 31 October 1866
• Parties: JAMES CARR, Appellant, v. WASHINGTON L. YOUSE, Respondent.
• Court: Missouri Supreme Court

39 Mo. 346

JAMES CARR, Appellant,

v.WASHINGTON L. YOUSE, Respondent.

Supreme Court of Missouri.

October Term, 1866.

Appeal from Hannibal Court of Common Pleas.

James Carr, for appellant.

I. It is the policy of the law that the interests of the public shall not suffer for want of an officer to execute the judgments, decrees and orders of the courts; the sheriff, ordinarily, is the proper officer to execute such judgments, decrees and orders--R. C. 1855, § 3, p. 368; Id. § 59, p. 749; Dunnica v. Coy, 28 Mo. 525; Duncan v. Matney, 29 Mo. 369.

II. Whenever a vacancy occurs in the office of sheriff, “the coroner of the county is authorized to perform all the duties which were by law required to be performed by the sheriff, until another sheriff for such county shall be appointed and qualified, and such coroner shall have no tice thereof--R. C. 1855, § 3, p. 350, & § 59, p. 749; 28 Mo. 525; 29 Mo. 369.

III. It is the policy of the law to sustain judicial sales, that the public confidence may not be impaired in them, and thus cause property sold by the officers of the law to bring the full value, and the rights of debtors and creditors both be strictly secured.

IV. As between third parties, the question whether an officer came into office legally or not cannot be inquired into. The acts of an officer de facto are valid. Hence the levy and sale of the property in controversy, by the sheriff, passed the title of the defendant in the execution to the appellant, notwithstanding the execution was directed to the coroner.

V. It was not necessary for the sheriff's deed to recite the fact that the transcript of the justice's judgment was filed in the office of the clerk of the Marion Circuit Court. The statute does not require it. Even if there had been no evidence on file, in the office of the clerk of the Hannibal Court of Common Pleas of the issuing and return of the execution to the justice of the peace, before whom the judgment was obtained, still that would only be grounds for quashing such execution at the return term. It will not invalidate the title of a third party who purchases under it in good faith. It is simply directory.--Murray v. Laften et al., 15 Mo. 621; Voorhies v. Bank of U. S., 10 Pet. 449.

G. Turner, for respondent.

I. The execution in the case was directed to and received by the coroner of Marion county (and not to the sheriff), and it was incumbent on him to execute the same. It was his duty to do so, and on him the responsibility rested; and he could not transfer the power thus vested in him to the sheriff by declining to execute it, and delivering it to the sheriff subsequently appointed. The sheriff, it is insisted, had no lawful power to execute the writ, the same not being to him directed, and no property having been taken in execution under it by the coroner; and it was the duty of the coroner either to proceed and execute the writ according to the command thereof, or to return it to the office whence it emanated. If this view of the law be correct, then it follows that the sheriff's sale was invalid and conveyed no title to the appellant--R. C. 1855, p. 750, § 3.

II. The execution on which said sheriff's sale and deed are founded issued from the office of the clerk of the Court of Common Pleas without any sufficient basis on which to rest. There does not in the sheriff's deed, or any of the proceedings given in evidence, legally appear that any valid execution was issued by the justice and properly returned by the constable, which was a conditiou precedent to the issue of any execution by the clerk (if, indeed, he was authorized to issue an execution at all upon a transcript of a justice's judgment, which is not admitted).

The proceedings of courts of limited jurisdiction must be in strict conformity to the law, else their proceedings are not valid and binding. Coonce v. Munday, 3 Mo. 373; Linderman v. Edson, 25 Mo. 105; Caldwell v. Lockridge, 9 Mo. 368; 4 Mo. 116; Burk et al. v. Flournoy et al., and Stevens v. Chouteau, 11 Mo. 382; Moss v. Thompson, 17 Mo. 405.

The certificate of the justice that an execution was issued and returned, and in such time and manner, is not legal evidence of these facts, but he should furnish a copy of the execution and constable's return duly certified, which was not done in this case. Neither the clerk's execution nor sheriff's deed shows that such preliminary proceedings were had, nor does the other evidence offered by appellant show it; hence appellant did not make out a prima facie case of a valid sheriff's sale. This deed was properly excluded by the court below for the reason above stated.

The sheriff's deed may be prima facie evidence of the facts it recites, but it is not evidence of facts it does not recite, and those facts it does not recite must at least be proved aliunde by sufficient legal testimony; and if they be essential to its validity, and they are not thus proved, the deed is properly rejected, or, if received, disregarded.

III. The transcript in this case should have been filed in the office of the clerk of the Marion Circuit Court; that requisition of the general law, the “Act establishing the Hannibal Court of Common Pleas” does not dispense with (see Local Laws of 1845, p. 66); and it is required that it be done by an act amendatory of said act of 1845; passed March 3, 1851,--Sess. Acts 1851, p. 208, § 3. It was filed only in the office of the clerk of the Hannibal Court of Common Pleas, and hence it is submitted that the execution under which the sheriff's sale was made was illegal.

HOLMES, Judge, delivered the opinion of the court.

This was an action of ejectment for a lot of land situate in the city of Hannibal, in the county of Marion. The plaintiff undertook to show title by virtue of a sheriff's sale and deed, under an execution issued from the clerk's office of the Hannibal Court of Common Pleas, upon a transcript of judgment of a justice of the peace, in the township of Mason, in said county, which had been filed in the office of said clerk. The execution was directed to the coroner, reciting that there was a vacancy in the office of sheriff, but before any levy had been made by the coroner, a new sheriff having been appointed, the execution had been turned over to the sheriff and had been executed by him. The plaintiff offered in evidence his sheriff's deed, together with a certified transcript of the entries and proceedings before the justice as the same appears of record in his docket, not including, however, the execution issued by the justice, and the constable's return thereon; and he also offered a paper purporting to be a certificate signed by the justice some two years afterwards, certifying the fact that the execution issued in the case had been returned nulla bona, giving also the words of the return as signed by the constable.

The defendant objected to the admission of the sheriff's deed in evidence for the reasons, first, that it recited an execution directed to the coroner and executed by the sheriff; and second, that it did not show the fact that a transcript of the justice's judgment had been filed also in the clerk's office of the Circuit Court of the county of Marion. These objections were sustained, and the deed was excluded.

Objection was made also to the admission of the certificate of the justice as to the fact that an execution had been issued by him and returned nulla bona; and the paper was excluded. No objection appears to have been made to the transcript from the justice's docket.

Thereupon the plaintiff submitted to a non-suit, and brings the case up by appeal.

The first objection to the sheriff's deed was not well taken. It appeared on the face of the execution itself, as well as from the other evidence in the case, that at the...