Curd v. Lackland

• Decision Date: 31 March 1872
• Citation: 49 Mo. 451
• Parties: EDWIN CURD, Respondent, v. H. C. LACKLAND, Appellant.
• Court: Missouri Supreme Court

49 Mo. 451

EDWIN CURD, Respondent,

v.H. C. LACKLAND, Appellant.

Supreme Court of Missouri.

March Term, 1872.

Appeal from Sixth District Court.

H. C. Hayden and H. C. Lackland, for appellant.

I. When a plaintiff in the execution buys property under his own judgment, he takes with notice of all defects and irregularities, and they become fraudulent as to him, and his deed can be attacked in a collateral proceeding. This is the rule in equity. (Gott v. Powell, 41 Mo. 416; Hann. & St. Jo. R.R. Co. v. Brown, 43 Mo. 294; Young v. Bircher, 31 Mo. 136; Trigg v. Ross, 35 Mo. 165, 168; Weston v. Clark, 37 Mo. 568; Dickerman v. Burgess, 20 Ill. 266, 279; 11 Ill. 523-4; Woodruff v. Hoard, 9 Ind. 186; Pettingill v. Moss, 3 Minn. 223; Russell v. Dyer, 40 N. H. 173, 185; Boyd v. Ellis, 11 Iowa, 98, 102.)

II. The deed itself shows on its face that no legal notice of the sale was given. It recites that the advertisement was by six “handbills.” The law in force at the time required the advertisement to be made by newspaper. It was admitted and proved that a newspaper was published at the time in the county. (R. C. 1855, p. 746, § 45; Sess. Acts 1862-3, p. 164; Sess. Acts 1863-4, p. 466.)

J. W. Boulware and C. H. Harden, for respondent.

I. The judgment at most is only voidable. In that case the defendant in the judgment, J. R. Collier, has the right in a direct proceeding for that purpose to have the same set aside; but even if it should be set aside upon his application in a direct proceeding, the title to the land sold under it would not be affected; the purchaser would most certainly hold the land. (Montgomery v. Farley, 5 Mo. 233; Perryman v. The State, 8 Mo. 208; Jackson v. Rosevelt, 18 Johns. 97; Jackson v. Bartlett, 8 Johns. 361; Jackson v. Delaney, 18 Johns. 536; McNair v. Biddle, 8 Mo. 257.) These authorities fully settle the doctrine that judgments merely voidable cannot be questioned in a collateral proceeding, and also that “when the court had jurisdiction over the subject-matter, and the defendant had notice of the proceedings against him, he is bound by them. However irregular or erroneous, the judgment is conclusive on all parties and privies thereto in any collateral proceeding, and the rights and titles acquired by virtue of an execution issued on such judgment will be protected.”

II. A departure from the law in advertising does not vitiate the sale unless such departure was accompanied with fraud, and then the title of the purchaser is not affected unless he can be connected with the fraud of the officer. (Wilber v. Cox, 6 Mo. 110; Lawrence v. Spea, 2 Bibb, 401; Draper v. Bryson, 17 Mo. 71.)BLISS, Judge, delivered the opinion of the court.

The plaintiff claims 152 acres of land in Audrain county, under one James R. Collier, by virtue of an attachment, judgment and sheriff's deed. The defendant claims the same land by virtue of a deed from the administrator of one Samuel B. Dickinson. The paper title was in Dickinson, but the plaintiff claims that there was a resulting trust in Collier available to his creditors, arising from the fact that the land belonged to him, but was fraudulently conveyed to Dickinson to place it beyond their reach. The sale and deed under the attachment proceedings were prior to the administrator's sale, and the object of this proceeding is to set aside the last sale and deed and vest the property in the plaintiff.

We must, from the evidence, consider the charges of fraud as fully sustained, that Dickinson held the property in trust for Collier, and that the interest of the latter could be sold upon execution. The questions which chiefly call for consideration pertain to the attachment proceedings and to the sale under them. In this proceeding various irregularities are charged, which, it is claimed, render the sale to the plaintiff of no effect; but it does not become necessary to speak in detail of them, as they are not such as to render the judgment void. The court had jurisdiction of the subject-matter and of the person of the defendant, and its errors must be very radical to authorize us in a collateral proceeding to treat its proceeding as a nullity. But the sale itself is attacked, and the record shows that a regular weekly newspaper was published at the time in Mexico in said county, but that the sheriff, instead of advertising the sale in said paper, gave the notice by handbills, which he could only do in case no newspaper was printed in the county. The deed recites this irregular notice, and the fact is not disputed, but the purchaser claims that the sale is not thereby rendered invalid, and even that it would be good if there had been no notice at all. We must treat the notice as though none were given, and this presents the question whether such omission will so invalidate a sale that no title will pass. In many of the old States such an omission is treated as fatal. (Benson v. Smith, 42 Me. 414; Den ex dem. Todd v. Phillhower, 4 Zabr. 796.) But this court, in Draper v. Bryson, 17 Mo. 71, adopted the doctrine maintained in the courts of Kentucky, that a purchaser at sheriff's sale should not be affected by an irregularity in the notice unless he participated in it, or the departure was for some fraudulent purpose. This case does not seem quite consistent in principle with Tanner v. Stine, 18 Mo. 586, where the irregularity was of a different character, yet I must consider the doctrine a sound one. When a stranger purchases for a good and adequate consideration, in ignorance of the irregularity, and receives a deed good upon its face, the sale should be treated as valid notwithstanding the sheriff's neglect in regard to the notice. He is covered by the shield which in so many cases the law extends over innocent purchasers. He stands...