Dollarhide v. Parks

• Decision Date: 06 June 1887
• Citation: 92 Mo. 178,5 S.W. 3
• Parties: DOLLARHIDE v. PARKS and others.
• Court: Missouri Supreme Court

5 S.W. 3

92 Mo. 178

DOLLARHIDE v. PARKS and others.

Supreme Court of Missouri.

June 6, 1887.

1. LOST INSTRUMENTS.

A sheriff's deed, having been filed for record, but not recorded, was afterwards lost, while in possession of court as evidence in another suit. The grantee and the sheriff testified as to its contents, execution, and acknowledgment in open court; also the court record, containing entry of acknowledgment of said sheriff of a deed by him, was put in evidence. Held, that the execution, loss, or destruction and contents of the deed were clearly shown, and that an amended deed made by order of the court was admissible in evidence.

2. PRINCIPAL AND SURETY — CO-SURETIES — REMEDIES.

If the property, though not attached, of one or more sureties on a bond, is sold before property which has been attached, of other co-sureties, there is no cause for complaint, where the whole sum received was insufficient to satisfy the judgment; yet if there is any irregularity it should be seasonably called to the attention of the court.

3. BONDS — ACTION ON — PLEADING.

Where the state, to use and at the relation of county, brings petition against sureties on bond of county collector, and petition states sufficient cause of action by alleging defendant's entrance upon his duties, the condition of his bond, and the breach thereof, the judgment is not a nullity, and cannot be attacked in collateral proceedings, although the petition fails to state that the county authorized the state to bring suit on the bond.

Appeal from circuit court, Hickory county.

Ross & Recham, for respondent. Foster P. Wright and Amos D. Smith, for appellants.

RAY, J.

This is an action of ejectment for the recovery of the described premises, the petition being in the usual form. The defendant Marion Parks was the original defendant in the cause against whom the suit was instituted, and the other defendants, Theophilus Parks and Amos Smith, were upon their own motion made parties defendant. The answer of the defendants was as follows: "And now come the defendants in this cause, and for answer to plaintiff's petition filed in said cause deny each and every allegation contained in said petition. And, further answering, say that on the sixteenth day of May, 1877, the lands in question were sold by W. D. Harryman, sheriff of Hickory county, Missouri, under an execution in a cause wherein the state of Missouri, at the relation and to the use of Hickory county, was plaintiff, and John D. Pitts, William A. Pitts, Y. M. Pitts, D. B. Pitts, A. J. Pitts, M. W. Dorman, William Dollarhide, John W. Quigg, Joseph Crates, and John Jackson were defendants, as the lands of William Dollarhide, to Amos S. Smith; that at the time of said sale of said lands William Dollarhide was the owner thereof; that a deed was executed to Amos S. Smith by said W. D. Harryman, as such sheriff, conveying the interest of said William Dollarhide, of, in, and to said lands; that said William Dollarhide was present at said sale, and afterwards said William Dollarhide received a credit therefor upon the judgment named in above-mentioned cause; that said lands were afterwards sold by said Amos S. Smith to Theophilus Parks, and afterwards said Theophilus Parks sold said lands to Marion Parks, defendant in this cause; and, having fully answered, said defendants pray to be discharged, with costs."

The plaintiff filed a replication, which is as follows: "Now comes plaintiff, and for reply to defendants' answer admits that the sheriff, W. D. Harryman, made a deed to the lands in petition mentioned, to Amos S. Smith, and pretended to convey the interest of William Dollarhide thereto. Plaintiff alleges that said deed is void, and did not convey the legal or any equitable title to said premises. He denies each and every other allegation in said answer."

In 1874 one John D. Pitts was elected to the office of collector of the state and county revenue for the county of Hickory, in this state, and this plaintiff with others, it seems, went upon his bond as such collector. Upon a settlement of the accounts of said collector with the county court of said county, a large sum was found due and owing the different revenue funds of the county, unaccounted for by the collector, and, in a suit upon the bond by the county, judgment was recovered in the sum of over $3,600. Under said judgment, the land in question, then belonging to plaintiff Dollarhide, was, with a large lot of other lands belonging to the obligors in said bond, sold at sheriff's sale, and said Smith became the purchaser, and received the sheriff's deed therefor, dated May 26, 1877, mentioned in the pleadings aforesaid. Afterwards said Smith conveyed to said Theophilus Parks, and said Theophilus to said Marion Parks, said last two deeds, being deeds of warranty, and formal in all respects. The said sheriff's deed to Smith, when offered in evidence at the trial, was successfully objected to by plaintiff, upon the ground that it was void upon its face, for the reason that it recited a judgment rendered on the fifteenth day of November, 1877, and a sale on the sixteenth day of December, 1877, when there was no court in session. In order to have been correct, said recitals in the deed should have been that said judgment was rendered on November 15, 1876, and that said sale was made on the sixteenth day of May, 1877. In other words, the misrecital as to the judgment is in the year, the year 1877 being given, whereas the correct year was 1876, and the misrecital as to the sale is in the month, December being used instead of May. The deed further recites that execution dated the eighteenth of December, 1876, was issued on said judgment, directed to said sheriff, and delivered to him, by virtue of which, on the first day of January, 1877, he made the levy, and that on the sixteenth day of December, (May,) 1877, "and during the session of the circuit court at the May term thereof, A. D. 1877," the right, title, and interest of said William Dollarhide was exposed to sale, etc. The deed bears date May 18, 1877; was acknowledged in open court on the twenty-sixth day of May, 1877. With the exception of the misrecitals aforesaid, the deed was otherwise formal and correct, as is conceded.

We deem it unnecessary to discuss or consider at length the several and opposing views of counsel, as to whether said misrecitals were such as made the deed void on its face, or are to be regarded as clerical mistakes, for the reason that the amended deed of said Harryman, duly executed, acknowledged, and delivered to said Smith for the said lands, was entirely free from these infirmities which were corrected in the amended deed made for that purpose, and that its subsequent loss or destruction did not lose or destroy its force and effect.

Defendant Smith testified, without objection, that in November, 1879, upon the trial of a certain suit in ejectment, wherein one George Smith was plaintiff and said William Dollarhide was defendant, and involving some of the lands embraced in said sheriff's deed, the latter, when offered in evidence, was objected to, upon the ground that it recited that the sale was made on the sixteenth day of December, 1877, instead of the sixteenth day of May, 1877; and that thereupon he had the sheriff, who executed the same, brought in, who then produced his sale-book, which contained the entries of sales made to said Smith by him, and referred to in said deed, which sale-book showed the sale was made on said May 16, 1877; that he had made particular inquiries for said sale-book, and learned that it was lost, having been informed it was destroyed when the court-house was burned; that at the trial, at said November...