Carson v. Hughes

• Decision Date: 06 December 1886
• Citation: 2 S.W. 127,90 Mo. 173
• Parties: Carson, Appellant, v. Hughes et al
• Court: Missouri Supreme Court

2 S.W. 127

90 Mo. 173

Carson, Appellant, v. Hughes et al

Supreme Court of Missouri

December 6, 1886

Appeal from Audrain Circuit Court. -- Hon. Elijah Robinson, Judge.

Affirmed.

Macfarlane & Trimble for appellant.

(1) A sale of land for partition is a judicial sale. Rorer on Judicial Sales, sec. 33; Williams' case, 3 Bland, 215; Beauregard v. New Orleans, 18 How. 497; Insurance Co. v. F. & M. Bank, 57 Pa. St. 394. The sale when complete is the act of the parties to the suit. Pentz v. Kuester, 41 Mo. 450; Strawbridge v Clark, 52 Mo. 21. (2) A judicial sale is, in contemplation of law, a sale pendente lite; a sale in court and the court is the vendor. The sale is a judicial act and not a ministerial act of the officer making it, as is the case under execution sales. Rorer on Judicial Sales, secs. 7 15, 17; Mason v. Osgood, 64 N.C. 467; Sturdy v Jacoway, 19 Ark.; Armor v. Cochrane, 66 Pa. St. 308; Gowan v. Jones, 10 S. and M. 164; Griffith v. Fowler, 18 Vt. 394; Murray v. Yates, 73 Mo. 16; Medhurst v. Wait, 3 Bun. 1259. (3) A judicial sale, being then a judicial act, a part of the proceedings pendente lite, has the same conclusiveness, as to the parties to the action, that any other judicial step taken in the case has. Confirmation of the sale gives finality to the proceedings and is conclusive upon the parties. The deed is not subject to collateral attack. The confirmation is a judicial decision that the sale is valid, and the parties to the suit are estopped to deny its validity when questioned collaterally. If aggrieved their remedy is by appeal or writ of error. Rorer on Judicial Sales, secs. 13, 113; Losell v. Rowell, 7 Cald. 282; Harrison v. Harrison, Md. Ch. 332; Koehler v. Ball, 2 Kan. 160; Phillips v. Dawley, 1 Neb. 320; Henry v. McKerlie, 78 Mo. 430; Exendine v. Morris, 76 Mo. 416; Castleman v. Relfe, 50 Mo. 583. (4) It is not essential that an approval of a sale of real estate appear by a formal record entry. It is sufficient if it can be gathered from the whole record. Jones v. Manley, 58 Mo. 559; Grayson v. Weddle, 63 Mo. 523; Henry v. McKerlie, 78 Mo. 430. The acknowledgment before the court sufficiently shows the approval of the sale. Potter v. Thomas, 58 Mo. 163. (5) Section 3374 is merely directory. The order of court is the sheriff's authority to sell. The certified copy of the order only advises the sheriff as to his duty. A failure to renew the order by the court or clerk could not injuriously affect the parties in interest, when the sale was not properly reported. A compliance with the requirements of this section is a matter of convenience rather than of substance. Sedgwick on Cons. of Stat., 116 to 123; Regele v. Schumaherm, 19 Barb. 540; City of Cape Girardeau v. Riley, 52 Mo. 424; Davis v. Wood, 7 Mo. 162. (6) Section 3374 applies only in case of a failure of the term of court. The general words "or other cause," contained in the section, will be restricted to those of the same kind as "failure of the term of court," and will not include "want of bidders." Sedgwick on Cons. of Stat., 360; State v. Pendleton, 30 Mo. 376; St. Louis v. Laughlin, 49 Mo. 559; State v. McGarry, 21 Wis. 496. (7) A sale and deed made by the sheriff without the previous direction of the court, or clerk in vacation, and without subsequent confirmation by the court, would not pass the title. The sale would not be judicial and the decision rendered in Hughes v. Hughes, 72 Mo. 136, upon the record then before the court, was certainly correct. This record is now supplemented by additional record of the court, showing that it was informed of the sale, confirmed it, and directed the execution of the deed. If a renewal of the order were essential to the validity of the sale, in view of the fact that the sale was approved, the presumption would be that such order was made. An order by the clerk in vacation need not be of record, though the order is necessary to give jurisdiction. Browley v. Roerney, 67 Mo. 283. The order of renewal to be made by the clerk in this case was not jurisdictional. (8) The judgment in the ejectment suit of Hughes v. Hughes is no bar to this action, though between the same parties and for the same property, and though the titles and defences in both actions were the same. Kemmell v. Benna, 70 Mo. 52.

Thos. H. Musick for respondents.

(1) The first point for the attention of the court is, whether having years ago decided not only this case, but the legal principles upon which it rests, will now, in a new action between the same parties, on the same facts and involving the same property, reconsider its decision to ascertain whether or not there was error. Adair Co. v. Ownby, 75 Mo. 282; Musser v. Brink, 80 Mo. 350. (2) It is admitted that a judgment in ejectment is not a bar to another suit between the same parties for the same property. Kemmell v. Benna, 70 Mo. 52. (3) But this doctrine has reference to trial courts, and it does not follow that courts of appeal in ejectment, any more than in other actions, may review settled constructions of law. (4) So the point remains, which shall prevail, the doctrine that all Supreme Court decisions are res judicata, or that there is an exception in favor of ejectment suits the same as in the lower courts. (5) Unless public policy, or some legal rule or logical necessity requires, it is contended that the general doctrine, and not the exception should prevail. (6) It is submitted that public policy demands that the general doctrine should prevail, first, because the solemn decisions of this court become rules of property on which titles are acquired and rest; and, secondly, the exception would tend to encourage carelessness in partition and other land proceedings. (7) It is said that hard cases make had laws, but there is no contravening hardship in this case, as Mr. Ringo, through whom the appellant claims, bid off a half section of the land for only fifty dollars, while respondents represent the heirs whose interests were thus sacrificed during the troubles of the war. (8) The sale was not a judicial sale, because there was no approval. Murray v. Yates, 73 Mo. 16. (8) The acknowledgment of the deed before the court is not an approval, because such acknowledgment may very well have been taken without the court having in mind the character of the case, the relation of the parties, or even without the parties being in court at...