Duncan v. Matney

• Decision Date: 31 January 1860
• Citation: 29 Mo. 368
• Parties: DUNCAN, Defendant in Error, v. MATNEY, Plaintiff in Error.
• Court: Missouri Supreme Court

29 Mo. 368

DUNCAN, Defendant in Error,

v.MATNEY, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1860.

1. In order that the defendant in execution may recover damages against a sheriff for an irregularly conducted sale of property by such sheriff, he must show some loss or damage resulting to himself as a natural and legal consequence of the irregularities and improprieties complained of; he can not fix the measure of his own damages by his voluntary act in paying money to recover back from the execution purchaser the property alleged to have been irregularly sold.

2. To constitute a valid levy of an execution on real estate, it is not necessary that notice of the levy should be given by the sheriff to the defendant in the execution; nor is it necessary that he should go on the land to make the levy, if he is sufficiently informed in relation to it to describe it properly.

3. A sheriff succeeding to office upon the resignation of his predecessor must proceed to do all things remaining to be done and performed in relation to the execution of process commenced and partly executed by his predecessor, or by the coroner, provided such acts in part execution are legal and regular.

4. It will not invalidate a levy in real estate that the name of the county in which the land is situated is not stated in the advertisement of sale.

5. The law is silent as to what shall constitute the evidence of a levy; it will be sufficiently regular if the memorandum of the levy be made upon a separate piece of paper and copied upon the writ of execution before its return; the officer may use his advertisement as evidence of the levy in making his return to the writ.

6. When an instrument, of whatever solemnity, is offered merely as containing an admission against the party executing it, it is competent for him to explain it.

Error to Buchanan Circuit Court.

This was an action to recover damages for the sale of plaintiff's land by the defendant, as sheriff of Buchanan county, by virtue of an execution. Plaintiff alleged in his petition that about the 14th day of December, 1857, defendant was sheriff of Buchanan county; that a certain judgment had previously been rendered against plaintiff; that an execution issued on said judgment and “was placed in the hands of the sheriff of Buchanan county for collection;” that about said 14th of December, 1857, defendant, under said execution, sold all the right, title and interest of plaintiff in and to west half of the south-west quarter of section twenty-six, in township fifty-six, of range thirty-five; “that no legal levy had ever been made on said land so sold by defendant or any one else; that defendant never advertised said land for sale, but sold without advertising the same for sale in due form of law;” that plaintiff was never notified by defendant or any one else of said execution so that he could make his selection as provided by statute; that plaintiff had always a sufficiency of personal property not exempt from execution. “Plaintiff further states that for the purpose of getting back said property so sold he had to pay out and expend and otherwise incur liability to the amount of two hundred dollars. Plaintiff further states that by reason of said illegal levy, proceedings and sale of said land by said defendant, he has been damaged in the sum of two hundred dollars, and for which he prays judgment.”

At the trial the plaintiff adduced the following facts in evidence. He introduced S. N. Sheridan as a witness, who testified that he was sheriff of Buchanan county about the 4th of November, 1857, when the execution referred to in the petition came into his hands as sheriff. The execution was dated November 4, 1857. He testified that he never notified Duncan that said writ was in his hands; that when he resigned his office of sheriff he handed over all the papers in his hands as sheriff, including this execution, to W. R. Penich, the coroner. Penich, the coroner, testified that the writ came into his hands to be served about 23, 4, 5, 6 or 7th of November, 1857; that with it was the copy of an advertisement for the sale of the land; that from this copy he endorsed on said execution a levy of said writ, and handed in the copy of the advertisement to the Journal office to be published in the St. Joseph Weekly Journal, a paper published in St. Joseph, Buchanan county; that he endorsed said levy on said writ without leaving the city of St. Joseph and without notifying the plaintiff thereof; that he handed over the writ of execution to Matney, the defendant in this suit. The execution with the endorsement thereon was introduced in evidence. The endorsement was as follows: “I levied the within execution on the following described real estate-- eighty acres of land, west half of south-west quarter of section twenty, township fifty-six, range thirty-five--also eighty acres of land, west half of north-west quarter of section twenty-six, township fifty-six, range thirty-five--also one hundred and twenty acres of land, east half and south-west south-west quarter of section twenty-three, township fifty-six, range thirty-five. Done in Buchanan county, in Missouri, November 26, 1857. Advertised for sale in Journal, December 19, 1857. W. R. Penich, coroner.”“I return the within execution satisfied in full. December 19, 1857. James H. Matney, sheriff.”

The plaintiff also introduced in evidence the deed of the sheriff Matney. This deed recites the judgment, the issuing of the execution “directed to the sheriff of said county, and to me, the said sheriff, delivered, by virtue of which said writ or execution I, as sheriff aforesaid, did on the 26th of November, 1857, levy upon and seize all the right, title and interest, claim, estate and property” of the said Duncan in and to the following described real estate, to-wit: Eighty acres of land, west half of the south-west quarter of section twenty-six, township fifty-six, range thirty-five--also the west half of the north-west quarter of section twenty-six, township fifty-six, range thirty-five--also one hundred and twenty acres, east half and south-west quarter section twenty-three, township fifty-six, range thirty-five.” The deed then recites that previously to the day of sale he gave more than twenty days' notice of the time and place of sale by causing a full description of said property to be advertised in the St. Joseph Weekly Gazette; that he did on the 19th of December, 1857, sell a portion of said real estate, to-wit, the west half of the south-west quarter of section twenty-six, township fifty-six, range thirty-five. He then proceeds to convey said tract to the purchasers.

The defendant having duly proven advertisement of sale published in the St. Joseph Weekly Journal, offered the same in evidence. The court ruled it out on objection of plaintiff. It was as follows: “Sheriff's sale. By virtue of an execution to me directed issued from the clerk's office of the Buchanan court of common pleas, in favor of Benjamin F. Loan, and against Bartly M. Duncan and Augustus Mark, I will, on the 19th day of December, 1857, sell to the highest biddor, for cash in hand, at the court-house, in the city of St. Joseph, Buchanan county, Missouri, between the hours or nine o'clock A. M. and five o'clock P. M. of said day, and whilst the said court is in session, all the right, title, interest and claim of the said Bartly M. Duncan of, in and to the following described real estate, viz: Eighty acres of land, west half of south-west quarter of section twenty-six, township fifty-six, range thirty-five--also eighty acres of land, west half of north-west quarter of section twenty-six, township fifty-six, range thirty-five--eighty acres of land, south half of north-west quarter of section twenty-three, township fifty-six, range thirty-five--also one hundred and twenty acres of land, east half south-west south-west quarter of section twenty-three, township fifty-six, range thirty-five, to satisfy said execution. [Signed] W. R. Penich, coroner. November 27.”

The court, at the instance of the plaintiff, gave the following instructions to the jury: “1. There is no evidence before the jury that said land sold was ever advertised for sale; and no sale of land by a sheriff is a legal sale on his part...