Chandler v. Bailey

• Decision Date: 15 November 1886
• Citation: 1 S.W. 745,89 Mo. 641
• Parties: Chandler et al. v. Bailey et al., Appellants
• Court: Missouri Supreme Court

1 S.W. 745

89 Mo. 641

Chandler et al. v. Bailey et al., Appellants

Supreme Court of Missouri

November 15, 1886

Appeal from Ozark Circuit Court. -- Hon. J. R. Woodside, Judge.

Reversed.

D. H McIntyre for appellants.

(1) The court erred in admitting the sheriff's deed read by plaintiff. (a) The description of the premises in dispute is different in the deed from the description stated in the petition. Stephen on Pl., secs. 75, 190; 1 Greenlf. Evid. [13 Ed.] secs. 53, 64; R. S., sec. 2245; Blackely v Saunders, 9 Mo. 472; Deickman v. McCormick, 24 Mo. 596. Defendant did not ask to amend; he must abide the consequences. Browning v. Walburn, 45 Mo. 477, 479. (b) The record does not show that the sale under the attachment execution was advertised in a weekly or daily newspaper. R. S., sec. 2380; Curd v. Lackland, 49 Mo. 451, 454. (c) The record does not show that the certificate of the sheriff's acknowledgment was endorsed on the deed. R. S., secs. 2392, 2393, 2394, 2395; Lincoln v. Thompson, 75 Mo. 631; Samuels v. Shelton, 48 Mo. 444. (2) The court exceeded its jurisdiction in rendering the judgment, in the attachment case, as the service was by publication and the record does not show any appearances by the defendant, E. W. Bailey. R. S., secs. 434, 435, 455; Freeman on Judgments, sec. 117; Bray v. McClury, 55 Mo. 128, 135. (3) There is no proof whatever in the record that plaintiffs are the heirs at law of A. B. Chandler, as alleged in the petition. The answer was a denial of all material allegations. 2 Greenlf. on Evid. [13 Ed.] secs. 309 331; Tylor on Eject., 482, 483; Coke on Litt., 11, 6; Jenkins v. Pritchard, 2 Will. R. 45. (4) The court erred in rendering judgment for plaintiff. The legal title was in defendant, Wm. Bailey, when the writ of attachment was issued and levied on the lots in dispute, notwithstanding the deed to defendant from E. W. Bailey had not been acknowledged. It had long before the attachment been delivered. Cape Girardeau v. Renfroe, 58 Mo. 265, 272; Harrington v. Fortner, 58 Mo. 468; Calwell v. Head, 17 Mo. 561; Lessee of Sicard v. Davis, 6 Pet. 124, 136; Miller v. Sherry, 2 Wall. 237, 249. (5) There is no proof showing that plaintiffs are heirs at law of A. B. Chandler, through whom they claim by descent. This proof is indispensable.

Livingston & McClendon for respondents.

Black J. Henry, C. J., absent.

OPINION

Black, J.

The plaintiffs recovered in ejectment, and the defendants appealed. Both parties claim title under E. W. Bailey. The plaintiffs' title is a sheriff's deed to A. B. Chandler, executed by virtue of a sale made under a special execution, issued on a judgment in an attachment suit of A. B. Chandler against E. W. Bailey. The attachment was levied on the property on the sixteenth of December, 1874; judgment on publication was rendered the twentieth of April, 1876, and the sale occurred on the seventeenth of April, 1877. The defendant, William Bailey, claims by virtue of a deed to him from E. W. Bailey, dated August 1, 1874, claimed to have been acknowledged on twenty-first of September, 1875, and recorded April 19, 1876. The bill of exceptions purports to give all of the evidence, but there is not a word tending to show that the plaintiffs are the heirs of A. B. Chandler. There is nothing to connect them with his title, and for this reason the judgment must be reversed.

As the cause will be remanded the plaintiffs can amend their petition so as to show that the lots are in the town of Gainesville, and thereby make the petition correspond with the proof, for there seems to be no dispute but the property sued for is located in that village. The sheriff's deed has endorsed upon it the clerk's certificate of acknowledgment taken in open court, and that was sufficient to entitle it to be read without producing any record entry of the acknowledgment.

A further objection made to the deed is that it fails to recite a proper notice of sale. The statute requires the sheriff to give twenty days notice by advertisement in some newspaper printed in the county, if there be one regularly published weekly or daily, and if not, then by hand bills. This deed recites a notice for twenty days "by advertisement in the Gazette-Tribune, a newspaper published in my said county." The omission to state that the paper was a daily or weekly one, ought not to render the deed void. The deed is unlike that in Ladd v. Shippie, 57 Mo. 523 for there the deed recited a sale on a different day from that on which the property had been advertised to be sold. The case of Draper v. Bryson, 17 Mo. 71, adopts the doctrine that a purchaser at a sheriff's sale should not be affected by an irregularity in the notice unless he participated in it, or the departure was for a fraudulent purpose. It is true the...