Evans v. Ashley

• Decision Date: 31 July 1843
• Citation: 8 Mo. 177
• Parties: EVANS v. ASHLEY.
• Court: Missouri Supreme Court

8 Mo. 177

EVANS

v.ASHLEY.

Supreme Court of Missouri.

July Term, 1843.

ERROR TO THE ST. LOUIS CIRCUIT COURT.

GEYER, for Plaintiff. The plaintiff in error submits that the instructions ought to have been given, and being refused, the judgment ought to be reversed, for the following reasons: 1. The advertisement under which the sale was made is insufficient, in that it does not state with sufficient precision where and at what time the sale is to be made. Geyer's Dig. 268. 2. The certificate of J. C Brown, of the sale to Paul Anderson, varies in the description of the property sold; and does not show when, where, or how the sale was made. Geyer's Dig. 268. 3. It nowhere appears that the sale was made, as the law requires, at the Court-house door of the county of St. Louis, on some day during the term of the Circuit Court of that county. 4. The description in the advertisement, certificate, and deed of the six lots, is not such as to pass the title to said lots; said Price holding them at the time in severalty, and having no interest in any other part of the land included within the boundaries of the tract described. Jackson ex dem. Livingston v. Delaney, 13 Johns. R. 537; Jackson ex dem. Carman v. Rosevelt, ibd. 97. 5. The sheriff, Walker, had no power to make a deed for land sold by his predecessor, without an order of the court previously made, on application by the purchaser, and proof of the facts entitling such person to a deed. Geyer's Dig. 269; Rev. Code, 1825, 370; Acts June session, 1821, ch. 32, November session, p. 101; Bissell v. Payne, 20 Johns. R. 3.

ALLEN, for Defendant. It is insisted that, upon the whole record, the judgment of the court below was correct. 1. The representative of Anderson, the purchaser at sheriff's sale, being in possession, and having a certificate of purchase, is entitled to that possession against all who cannot show a paramount title. 2. The title was in Anderson by the certificate, or the certificate and deed after the time for redemption had expired, and his representative being in possession; the plaintiff could not eject him. Fenwick v. Floyd's Lessee, 1 Harris and Gill, 172; Simonds v. Catlin, 2 Caine's R. 60.3. That, on the day of the rendition of the judgment, and on which the sheriff sold these lots to Darby, Price had no title, nor at the time of the sale had he any title subject to sale on execution. It is further insisted, that there is no error in the refusal to give the first instruction asked by the plaintiff. It is further insisted, that there is no error in the refusal to give the second instruction: 1st. Because there is no evidence to show that O'Hara had laid out the land into town lots and streets. 2nd. Because the land, as advertised. was sufficiently certain.

SCOTT, J.

This was an action of ejectment, brought by the plaintiff against the defendant in error, for six lots in O'Hara's Addition to St. Louis, making together one hundred and eighty feet by eighty feet; plea, not guilty; on which there was a verdict and judgment for the defendant; to reverse which, the plaintiff prosecutes this writ of error. The following are the facts as they appear from the bill of exceptions: Risdon H. Price being the owner of 12 1/2 arpents of land, of which the lots mentioned in the declaration were a part, conveyed, on the 16th March, 1820, one undivided half of the same to William M. O'Hara. This deed was recorded on the 17th May, 1820. On the 1st September of the same year, the said Price conveyed the other half of the said tract of land to the said O'Hara. This deed was recorded on the 20th October, following.

On the 1st September, 1820, the said O'Hara conveyed to the said Price the six lots in the declaration mentioned, situate at the upper end of the town of St. Louis, being parts of a tract of land conveyed to O'Hara by Price, as aforesaid, and described on a map annexed to the deed of conveyance, as lots Nos. 82, 83, 84, 85, 86, 87, which lots are each thirty feet wide, and eighty feet deep. This conveyance was recorded on the 20th November, 1827.

In August, 1829, A. H. Evans recovered in the St. Louis Circuit Court a judgment against Risdon H. Price, above-named, on which, on the 12th January, 1832, an execution issued, by virtue of which, the said six lots were sold to J. F. Darby, to whom, on the 16th April, following, the sheriff executed a deed for the same. Darby, on the 20th August, 1832, conveyed the said lots to A. H. Evans, the plaintiff in error.

The title set up by the defendant is as follows: On the 26th December, 1820, Wm. O'Hara conveyed by deed of that date, to Paul Anderson, the tract of 12 1/2 arpents above-mentioned, excepting 25 lots, each thirty feet wide and eighty feet deep, before conveyed by said O'Hara, as follows: two to F. Dent, six to R. H. Price, and fourteen to Thomas Collett. This conveyance was recorded on the 24th March, 1821. Several judgments were obtained against Risdon H. Price in the Supreme Court, and in the St. Louis Circuit Court, in the spring of the year 1821. Upon the judgments obtained in the Circuit Court, executions were issued, returnable to the August term, 1821. By virtue of these executions, and the executions from the Supreme Court, the 12 1/2 arpents of land before-mentioned, were levied upon and sold, without reservation or exception, the following being the description of the same contained in the sheriff's advertisement, viz.: “12 1/2 arpents of land, near the town of St. Louis, and south of Elias Rector's, purchased of said Price of Edward Hempstead, administrator of the estate of M. Lewis, deceased.” After this sale, a certificate thereof, under the act of 1821, for relief of creditors and debtors, was made. This certificate commenced thus: “I, Joseph C. Brown, sheriff of St. Louis county,” &c. and it is certified that he, Brown, on the 28th day of August, 1821, exposed to sale a tract of land containing 12 1/2 arpents, more or less, except certain lots sold to Josiah Spalding, agent of Abraham Beck, and F. Dent (fifteen in number), situate above and adjoining the town of St. Louis, being the same 12 1/2 arpents that said Price acquired by deed from E. Hempstead, administrator of the estate of M. Lewis, deceased; and that Paul Anderson being the highest and last bidder, the same was struck off to him; and that the said Anderson would, on the 28th day of February, 1824, be entitled to a deed therefor, unless the same should be redeemed by virtue of the act of Assembly, entitled, “An act for the relief of Debtors and Creditors.” This certificate was recorded wihin ten days from the sale, and was signed, “John K. Walker, deputy sheriff.”

On the 20th September, 1825, John K. Walker, the then sheriff, and successor of J. C. Brown, the sheriff at the time of the sale last above-mentioned executed a deed to Paul Anderson, for the tract of 12 1/2 arpents of land excepting the fifteen lots mentioned in the said certificate. This deed was executed by Walker, without any other authority than that he possessed as sheriff, and its validity rests on the act of 1821, for the relief of Debtors and Creditors, or on some supposed principle empowering a succeeding sheriff to execute deeds for lands sold by his predecessor, or it is executed without authority.

The defendant derived title to the 12 1/2 arpents, including the lots in dispute, from Paul Anderson, by regular conveyances; and it was admitted that she was in possession of the lots sought to be recovered by this suit, at its commencement.

The plaintiff asked the two following instructions, which were refused, and the refusal excepted to: 1. That the deed from J. K. Walker, sheriff, to Paul Anderson, given in evidence in this case by the defendant, is inoperative, in law, to convey the lots in question, or any of them to Paul Anderson. 2. If the jury find from the evidence, that Wm. M. O'Hara (being the owner of a tract of land described in the deed of Walker, sheriff, to Paul Anderson, and in the certificate of sale of J. C. Brown, sheriff, to Paul Anderson) had laid off the said tract of land into town-lots and streets, and had sold to R. H. Price six of said lots, and to other persons, other of said lots; and that at the date of the judgments against Price, under which defendant claims title, said Price was not otherwise interested in said tract of land, than as the owner of said lots, then the title claimed under the sale by the sheriff is invalid.

It was contended for the defendant, that the certificate of John Walker, deputy sheriff, is sufficient evidence of the sale, under the act for the relief of Debtors and Creditors, approved 28th June, 1821; and that the deed of J. K. Walker, the successor of J. C. Brown, was sufficient to pass the title of Price to the lots, after the time of redemption had elapsed; that the execution of the deed is an official act; that the office of sheriff is a quasi corporation, and by analogy, the successor in the office of sheriff would seem to be the proper person or officer to consummate what his predecessor had failed or was disabled to do. No authorities are cited for this view of the subject, and the course of the argument will render a review of the case of Evans v. Wilder, 7 Mo. R. 359, necessary.^(a) It seems to be settled that a sheriff's sale of real estate is within the statute of Frauds and Perjuries, and unless some note or memorandum of the sale is made, the sale conveys no equitable, much less legal, title. Simonds v. Catlin, 2 Caine's Cases in Error; Jackson v. Catlin, 2 Johns. R. 248; 8 ibld. 520.^(b) On what principle is it attempted to support the validity of the certificate signed by the deputy sheriff? In the case of Stewart v. Cave, 1 Mo. R. 752, it was held, that letters of administration granted by a deputy clerk, in his own name, were void. In that case the letters were granted in the name of the deputy, and signed by him as deputy. In the case of Post v. Caulk, 3 Mo. R. 35, letters of administration...