Cook v. Hacklemann

• Decision Date: 31 January 1870
• Citation: 45 Mo. 317
• Parties: THOMAS COOK, Respondent, v. THOMAS S. HACKLEMANN et al., Appellants.
• Court: Missouri Supreme Court

45 Mo. 317

THOMAS COOK, Respondent,

v.THOMAS S. HACKLEMANN et al., Appellants.

Supreme Court of Missouri.

January Term, 1870.

Appeal from Third District Court.

Lindenbower & Sherwood, for appellants.

F. P. Wright, for respondent.

I. The recitals in a deed executed by a sheriff upon a sale under a distress warrant are not prima facie or presumptive evidence of the facts therein stated, as they are in a deed made by virtue of an execution upon a judgment. The act concerning executions does not apply to sales made by virtue of distress warrants.

II. It devolved on the defendant to show that McKay, the collector, was a defaulter and delinquent, and also that Cook was a security on the bond, and that he executed that bond.R. F. Butler, for respondent.

A deed made by a public officer purporting to convey the property of a private individual as an official act, by virtue of statutory power, is never evidence of anything except its own existence, unless made so by express provisions of statute. (Moreau v. Detchemendy, 41 Mo. 431; Bosworth v. Bryan, 14 Mo. 579; McCormick v. Fitzmorris, 39 Mo. 24; Stierlin v. Daily, 37 Mo. 483; 2 Johns. 280; Ronkendorf v. Taylor, 4 Pet. 349; 2 Washb. Real Prop. 545 et seq.) No presumptions are indulged in favor of the acts of public officers in cases like the present. The burden is on the purchaser to make out his title by showing that every prerequisite of the law had been fulfilled, and the acts must be expressly authorized by statute. (Morton v. Reeds, 6 Mo. 64; Reeds v. Morton, 9 Mo. 878; Crook v. Peebly, 8 Mo. 345; Tanner v. Stine, 18 Mo. 580; Blair v. Coppage, 16 Mo. 495; Ruby v. Huntsman, 32 Mo. 501; Stierlin v. Daly, supra; Gibbons v. Steamboat Fanny Barker, 40 Mo. 253; Moreau v. Detchemendy, supra; 2 Johns. 280; 4 Pet. 349; 2 Washb. on Real Prop. 545-71.)

BLISS, Judge, delivered the opinion of the court.

Plaintiff brought ejectment in the Cedar Circuit Court, and, after showing a chain of title from the United States, the defendant exhibited a sheriff's deed to himself, and gave no other evidence. The deed was executed by L. Davis, as sheriff of Cedar county, and recites that P. B. McKay, sheriff and exofficio collector of said county for the year 1861, failed to pay into the State treasury the amount with which he stood charged upon the State auditor's books as due the first Monday of January, 1862; that the auditor ascertained the balance due to be $843, and on the 15th of December, 1863, issued a distress warrant in favor of the State and against said McKay, as principal, and his securities upon his official bond, including the plaintiff, directed to John H. Paynter, then sheriff of said county, which was delivered to him June 13, 1864; that said Paynter levied on 240 acres, the real estate in dispute, describing it; and after giving twenty days' notice by handbills, on the 20th of March, 1865, in Stockton, at the court-house door, and during the sitting of the County Court, exposed for sale at public auction all the right, title, and interest of said McKay and his five securities, including plaintiff, and naming them, in and to said real estate; that at said sale defendant Hacklemann was the highest and best bidder, at $120, and it was struck off to him at that sum; that he paid for the same; also, that said auditor, on the 18th of July, 1868, made an order upon said Davis, as sheriff (the said Paynter being dead), to convey said land to said Hacklemann; and thereupon the said Davis, “in consideration of the premises, and in obedience to said order, and by virtue of the authority vested in him by law and the said auditor of public accounts,” proceeded to convey the interest of the signers of the bond unto said defendant, etc.

When the deed was offered in evidence, objection was made to it because it was void upon its face; and after the evidence was concluded, the plaintiff asked the court to instruct the jury that the deed was not sufficient to show title in defendant, which the court refused to do, but, at defendant's instance, instructed them that if they believed that sheriff Davis executed the conveyance to defendant Hacklemann in consummation of a sale by his predecessor, Paynter, under a distress warrant from the State auditor against McKay and his securities, they would find for defendant, provided it was sold at either door of the house used as a courthouse. No evidence whatever, unless the recitals were evidence, had been given in relation to the sale by Paynter, the distress warrant, or any of the proceedings upon which the deed was based. Waiving for the present the consideration of the alleged irregularities upon the face of the deed, it is certain that of itself it could have no force or effect. It is not a deed of the owner of the land, and the authority to make it should first have been established. If McKay had been sheriff and tax collector, and had proved a defaulter; if he had given a bond upon which the plaintiff was...