Dunham v. Wilfong

• Decision Date: 30 April 1879
• Citation: 69 Mo. 355
• Parties: DUNHAM, Plaintiff in Error, v. WILFONG.
• Court: Missouri Supreme Court

69 Mo. 355

DUNHAM, Plaintiff in Error,

v.WILFONG.

Supreme Court of Missouri.

April Term, 1879.

Error to Pettis Circuit Court.--HON. WM. T. WOOD, Judge.

Geo. P. B. Jackson for plaintiff in error.

Philips & Vest and Houston & Bothwell for defendant in error.

HOUGH, J.

This was an action of ejectment. The land sued for was sold in partition, to Chas. O. Jones, who gave his notes for the purchase money, with Peter H. Stone, as security, payable to Wesley McClure, sheriff of Pettis county, or his successor in office. H. J. McCormick, his successor in office, brought suit on said notes, against said Stone and Jones, alleging that said notes represented the purchase money of the land in suit, that a vendor's lien existed in his favor therefor, and asking for the enforcement of said lien. Judgment, by default, was rendered for the enforcement of a vendor's lien, and, by virtue of a special execution, issued thereunder, the land in controversy, was sold to the plaintiff, Dunham, to whom the sheriff executed a deed conveying “all the right, title, interest, claim, estate and property of them, the said C. O. Jones and P. H. Stone, of, in and to the above mentioned and described property that I might sell as sheriff as aforesaid, by virtue of the aforesaid execution and advertisement.” This deed was properly acknowledged May 4th, 1866, and recorded May 7th, 1866. It is agreed that it does not anywhere appear of record that the court ever ordered H. J. McCormick to institute suit for the collection of the notes, or to enforce a vendor's lien, or that it ever ordered Sheriff McClure to transfer said notes, or any of them, to his successor in office. The return of service of process, made by the sheriff in the suit brought by McCormick, is as follows: “I do hereby certify that I executed the within petition and alias writ of summons by delivering a true copy of the same to Peter H. Stone, and also an alias summons to Charles O. Jones, he being next and last served. All in Pettis county, Missouri, January 30th, 1864. J. Hubbard, sheriff Pettis county, by J. Montgomery, deputy sheriff.” The title is conceded to have been in the parties to this partition suit, and the only question is, whether, under the foregoing proceedings to enforce a vendor's lien, said title was acquired by the plaintiff. It is contended, by the defendant, that C. O. Jones was not legally served with process; that the court, therefore, acquired no jurisdiction over him, and, as he did not appear to the action, the judgment against him was a nullity.

1. SHERIFF'S RETURN.

The return is informal in not stating that a copy of the alias writ of summons was delivered to the defendant, Jones. The return shows that Jones was personally served with an “ alias summons,” and as the statutory reason for serving him with the summons alone, without the petition, is found in the language of the return that he was “next and last served,” it is rendered certain to a common intent that the writ delivered to Jones was a counterpart of the one delivered to Stone. It is impossible, therefore, that Jones...