Foulk v. Colburn

• Decision Date: 31 July 1871
• Citation: 48 Mo. 225
• Parties: STEPHEN D. FOULK, Plaintiff in Error, v. GEORGE W. COLBURN, Defendant in Error.
• Court: Missouri Supreme Court

48 Mo. 225

STEPHEN D. FOULK, Plaintiff in Error,

v.GEORGE W. COLBURN, Defendant in Error.

Supreme Court of Missouri.

July Term, 1871.

Error to First District Court.

Elliott & Blodgett, for plaintiff in error.

I. The recital in the sheriff's deed to plaintiff, of the date of the levy of the writ of attachment in the case under which he claims, is prima facie evidence of the fact as therein recited, and is sufficient proof of the date of the levy when uncontradicted by other evidence. (Potter v. McDowell, 43 Mo. 93; Merchants' Bank v. Harrison, 39 Mo. 433; McCormack v. Fitzsimmons, id. 24; Stephens v. Thompson, 13 Ill. 191; Hardin v. Clark, 3 Jones, N. C., 137.)

II. The date of the attachment should be recited in order that the deed may show from what date the purchaser takes the title. In a proceeding in rem, the levy of the writ of attachment upon the land at a certain date, is the act which gives the sheriff the power to pass the title to a purchaser from such date. The seizure of the property is the foundation of the whole proceeding, without which there can be no valid judgment. (Smith v. McCutchen, 38 Mo. 417; Bois v. Vance, 32 Miss. 198.) It is well settled that a sheriff's deed must show the power under which the sheriff acts in transferring the title from the defendant in the execution to a purchaser. (Lackey v. Lubke, 36 Mo. 124; Tanner v. Stine, 18 Mo. 582; Blackw. Tax Tit., Balch's ed., 386; Zabriske v. Meade, 2 Nevada, 288; Donahoe v. McNulta, 24 Cal. 418.)

Unless the fact of the levy of the writ of attachment and also the date thereof are both recited in the deed, the deed is defective in two important particulars: 1. It shows no power in the sheriff to make the sale, for if there is no attachment there can be no valid judgment. 2. If the date of the levy be not recited, the deed shows no power in the sheriff to pass the title to a purchaser from any definite period, and the deed is void for uncertainty, in the same manner as though the uncertainty existed in matter of description, and parol evidence is not admissible to explain it. (Mason v. White, 11 Barb., N. Y., 187.)

The judgment throws no additional light upon the question as to when the defendant's title had its inception. Both parties are bound by the recitals in their deed, and defendant will not be permitted to vary or add to his deed by parol evidence so as to give it any other or greater effect than it has upon its face, or an operation beyond the broadest scope of its own terms. (Enstein v. Gay, 45 Mo. 62; Ashley v. Bird, 1 Mo. 640; 2 Phill. Ev. 637, 644, note 487; Douglas v. Scott, 5 Ohio, 195; Singleton v. Fore, 7 Mo. 518.) Where the record of a judgment has been lost or destroyed, the first step toward obtaining a remedy is by a proceeding in the court where the judgment was given, to the end that the record may be supplied. (Walton v. McKesson, 64 N. C. 77, in Am. Law Reg., June, 1870, p. 385.) What a court of record does is known only by its records. (Wilson v. Pemberton, 12 Mo. 602; Medlin v. Platte County, 8 Mo. 238.)

The theory of the defendant, on which he bases his right to the land on matters de hors his deed, cannot prevail. He cannot take title partly by deed and partly by parol. Having accepted a deed defective in its terms, he is bound by it. (2 Nevada, 288; Tanner v. Stine, 18 Mo. 587; Donahoe v. McNulta, 24 Cal. 417-18.) So rigid is the rule concerning the execution of deeds of this character, that an imperfect execution of a statutory power will not be aided even by a court of equity. (Moreau v. Detchemendy, 18 Mo. 587; 1 Sto. Eq. Jur., §§ 96, 177.)

Defendant in error insists that he is not bound to recite in his deed the date of the levy of the attachment in the case through which he claims, because the statute does not expressly require it; but this court has held, where the statute is silent as to what recitals shall be contained in a statutory deed, that the form must be adapted to the facts in the case, and that construction cannot be employed to give such a deed an effect beyond the broadest scope of its own terms. (Enstein v. Gay, 45 Mo. 63.)

Nickerson & Hicks, for defendant in error.

I. The record of the case of Colburn v. McCown became and was a muniment of title for the defendant and purchaser, and the loss being admitted, it was competent to prove its contents by parol. (Armstrong v. McCoy, 8 Ohio, 135; Ravenscroft v. Giboney, 2 Mo. 1; 8 Mo. 115; 4 Mo. 39; Graham v. O'Fallon, 3 Mo. 351; 28 Me. 367; 38 Me. 456.)

II. The evidence to establish the contents of the lost record does not contradict or vary the deed offered in evidence by Colburn. But it constitutes the authority by and under which the special judgment against McCown was rendered, and without which no valid judgment could have been rendered, and is evidence of a higher nature than the sheriff's deed. (Armstrong v. McCoy, supra; 12 Mo. 529.)

The law does not require the date at which the land was attached to be recited in the sheriff's deed (Gen. Stat. 1865, tit. Executions; Tanner v. Stine, 18 Mo. 587); hence the loss of the record cannot impair or divest the defendant's title.

Plaintiff had notice of the prior lien and attachment of the land in the suit of Colburn v. McCown, when he purchased and received his deed, sufficient to put him on inquiry, and that was enough. (1 Paine, C. R., 462; 1 Paige, 461; id. 202; Green v. Slater, 4 J. C. 38; 3 Johns. 526.)BLISS, Judge, delivered the opinion of the court.

The plaintiff seeks to recover certain real estate, and both parties claim title through execution sales upon different judgments in attachment against one McCown. The original levy in the attachment proceedings under which defendant holds, is claimed to have been made previous to that in the other case, and the questions raised pertain exclusively to the defendant's title. His deed from the sheriff makes no allusion to the original levy, so that it does not appear from it when it was made; and the plaintiff claims that this is a fatal omission.

The statute does not specify what recitals in sales upon attachment a sheriff's deed shall contain. After the judgment, a special fi. fa. issues to sell the property seized, and the deed is governed by the provisions of the statute upon executions. The one under consideration is regular unless in the particular named. The judgment and order of sale are described, but the deed does not mention the date of the original levy, nor does the judgment or order refer to it; so that, without reference to the original writ and the return of the sheriff upon it, it cannot be told when the property was seized.

It would seem that the special execution, like an ordinary venditioni exponas, would naturally refer to the seizure of the property as well as to the judgment and order of sale. Both are proceedings that precede the sale, and without which no title will pass. Yet it is to be presumed that the court had authority to issue the order--that it would not have been issued unless there had been a levy upon the property ordered to be sold--and the order itself must be held to be sufficient authority for the officer to proceed. The statute gives no form for a special fi. fa., nor does it direct what...