Evans v. Wilder

• Decision Date: 30 June 1838
• Parties: AUGUSTUS H. EVANS v. BENJAMIN WILDER.
• Court: Missouri Supreme Court

5 Mo. 313

AUGUSTUS H. EVANS

v.BENJAMIN WILDER.

Supreme Court of Missouri.

June Term, 1838.

J. SPALDING, for Appellant. 1. First, the certificate of the sheriff's sale, under the act of 1821, cannot be made the foundation of any title. 1. Because it was not signed by the sheriff, J. C. Brown, but by J. K. Walker, in his own name. 2. Because it was not filed in the clerk's office within ten days after it was made, as the law required. 3. It was not in conformity with the law, as it gave a wrong time for redemption. 4. Because eight parcels of land were sold in a lump, and the sale was void. 2. The second point is, that if the sheriff's sale was not void, yet no right could vest in Comegys & Persehouse, because they were not judgment creditors. 2. Because it was Price who redeemed, and not Comegys & Persehouse, for it was done with Price's money. 3. As to the executions issued from the Supreme Court, there was no judgment to issue them on. 4. The fourth point is, that the deed by the sheriff to Comegys & Persehouse is void, because when it was made, the act of redemption of 1821 was repealed. 5. The fifth point is, that the instruction of the court to the jury was too broad; it left nothing to the jury to pass on. 6. The 6th point is, that the law of 1821, respecting debtor and creditor as regarded executions then issued, was unconstitutional, and therefore nothing passed by the sale to Riddick, the sheriff's certificate to him, and the redemption of the land by Price for the use of Comegys & Persehouse.

H. R. GAMBLE, for Appellee. 1. The act of 1820, p. 74, § 21, authorizes this court to carry its own judgments into effect, by execution, in such manner as is proper; and the practice of this court, at this time, was to execute such judgments in manner here done. 2. The legal effect of the judgment in this court has been carried out by the execution in the form of execution adopted. Also, if there had been any variance in the manner alleged, the error might have been amended, and here the purchaser would be protected by the same principle. Laroche v. Washbrough & Mailand, 2 T. R. 735; Shaw v. Maxwell, 6 T. R. 450; Bissell v. Kepp, 5 Johns. R. 89; 8 Johns. R. 365; 13 Johns. R. 97, 549; Collier v. Easton, 1 Mo. R. 421; McNair v. Lane, 2 Mo. R. 58. 3. If the redemption law was unconstitutional, then the sale, instead of passing a redeemable interest, passed the absolute title, and whatever evidence of such sale was given, would have the legal effect of conveying the whole title without any power to redeem in Price or a creditor. See 1 Little's R. 16. 4. The repealing a law leaves all that constituted the validity of proceedings under the law repealed, unaffected. The validity of the proceeding consists in its having the same effect in law as it would have had under the law which was repealed. 5. Neither Price, nor any person claiming under him, can object to the correctness of the redemption which was effected by his means and for the benefit of his creditors, and without which the property was gone from him and his heirs forever.

MCGIRK, J.

Evans brought an action of ejectment against Wilder, the defendant, in the Circuit Court of St. Louis county. The defendant pleaded not guilty. Verdict and judgment for the defendant, Wilder. Evans appealed to this court. It appears by the record that the lot lies in the city of St. Louis, and that both parties claim under one Risdon H. Price. Evans gave in evidence a judgment recovered by him against Price, in the Circuit Court of St. Louis county, on the 4th of August, 1829. An execution issued thereon on the 24th of February, 1831, which was levied on the lot in question, and the same was sold by the sheriff on the 31st March to Evans, and on the 13th of April the sheriff made a deed to Evans Evans then gave in evidence another execution on the same judgment shortly afterwards, and a levy and sale of the same lot to John F. Darby, a deed to Darby by the sheriff, and then a deed to Evans by Darby. It was also proved that at the time of bringing this action, Wilder was in possession of the lot in question. Wilder then gave in evidence three judgments of this court against Price; one in favor of C. W. Hunter; one in favor of D. Coalter; the other in favor of the Bank of Missouri--all rendered 15th day of May, 1821. It appears, also, that the suits in which these judgments were rendered, were commenced in the Circuit Court, and judgments rendered therein, and the same were affirmed by this court. The following is the form of the judgments in this court: “Whereupon, it is considered and adjudged by the court, that the judgment aforesaid, in form aforesaid rendered, be in all things affirmed, and stand in full force and virtue; and it is further considered that the said defendants in error recover their costs and charges by them laid out and expended, and that they thereof have execution.” Executions issued on these judgments shortly afterwards, and these were levied on the lot in question. On the 28th of August, in the same year, it was sold to Thomas F. Riddick for the use of the bank, David Coalter and Curcier Ravesis & Co. of Philadelphia. The deputy sheriff, in the name of the principal, on the sale, executed a certificate to Riddick as aforesaid, under the act of 1821, for the relief of debtor and creditor, stating the purchase by Riddick, the consideration, and that he would be entitled to a deed in two years and a half from the date of the certificate, unless Price, or some other creditor of Price, should redeem within the time. The defendant then gave in evidence a deed of the sheriff of St. Louis county, to Cornelius Comegys and John Persehouse, for the lot in question, dated 26th of May, 1826, which recited the sale to Riddick, and the redemption of the property by Comegys & Persehouse, as judgment creditors of Price, and conveyed the property to them as such. The defendant then proved that at the time the sheriff's sale was made to Riddick, and at the time the sheriff made his deed to them, Comegys was a judgment creditor of Price to the amount of $1,135 60. The defendant then gave in evidence to show that John O'Fallon, as the agent of Comegys & Persehouse, paid the judgments against Price on which the property was sold, and that the same was paid with money furnished by Price, and that Comegys & Persehouse were to hold the property till 1st September, 1827, as security for the debt Price owed them, and that he, as agent, had afterwards sold the property to pay said debts, but that a large amount yet remained unpaid. It was not entirely clear, from the evidence, whether O'Fallon was lawful agent to do the business. This evidence the defendant gave to show title out of Evans at the time of bringing the action.

The plaintiff objected to the reception of all the defendant's evidence. The court overruled all the objections and permitted the evidence to go to the jury. The court then, on the application of the defendant, instructed the jury that the defendant had made out his defense and was entitled to a verdict, which instruction was excepted to. The plaintiff makes many objections to the defendant's proceedings. He made a motion for a new trial, which was overruled. The first reason is, that the verdict is against law and evidence. 2. The court admitted illegal and improper evidence. 3. The court gave wrong instructions. To reverse the judgment the appellant, Evans, makes the following points by Mr. Spalding, his counsel: 1. First, the certificate of the sheriff's sale, under the act of 1821, cannot be made the foundation of any title. 1. Because it was not signed by the sheriff, J. C. Brown, but by J. K. Walker. in his name. 2. Because it was not filed in the clerk's office in ten days after it was made, as the law required. 3. It was not in conformity with the law, as it gave a wrong time for redemption. 4. Because eight parcels of land were sold in the lump and the sale was void. 2. The second point is, that if the sheriff's sale was not void, yet no right could vest in Comegys & Persehouse, because they were not judgment creditors. 2. Because it was Price who redeemed, and not Comegys & Persehouse, for it was done with Price's money. 3. It was not proved that the redemption money was paid to persons entitled to it. 3. The third point made is, that as to the executions issued from the Supreme Court, there were no judgments to issue them on. 4. The fourth point is, that the deed by the sheriff to Comegys & Persehouse is void, because when it was made, the act of redemption of 1821 was repealed. 5. The fifth point is, that the instruction of the court to the jury was too broad; it left nothing to the jury to pass on. 6. The sixth point is, that the law of 1821, respecting debtor and creditor, as regarded executions then issued, was unconstitutional, and therefore nothing passed by the sale to Riddick, the sheriff's certificate to him, and the redemption of the land by Price for the use of Comegys & Persehouse.

I do not deem it necessary to examine all the objections made to the title set up by the defendant. This title is offered to show title out of the plaintiff, and not to prove any title in the defendant.

With regard to the last question made by the plaintiff in error, I will say, that it seems to me to be perfectly immaterial whether the act of 1821, be constitutional or not; for if the act be unconstitutional, then the consequence must be that the sale of the property, by a lawful execution, was...