Gaston v. White

• Decision Date: 31 October 1870
• Citation: 46 Mo. 486
• Parties: STEPHEN H. GASTON, Defendant in Error, v. HENRY C. WHITE et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

46 Mo. 486

STEPHEN H. GASTON, Defendant in Error,

v.HENRY C. WHITE et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1870.

Error to Sixth District Court.

Redd, and McCabe & Pratt, for plaintiffs in error.

I. The court erred in holding that the judgment and decree of sale to enforce the vendor's lien, and the execution sale and sheriff's deed, were void and did not divest plaintiff of his equitable interest in the land.

II. The suing out of an execution by the administrators of the deceased plaintiff, without a revivor of the judgment, is authorized by section 17, p. 904, R. C. 1855.

Dryden, Lindley & Dryden, and Rush, Lipscomb & Anderson, for defendant in error.

I. The sale by the sheriff under execution was no bar to Gaston's equity to have specific execution of the contract of sale.

II. After the death of the judgment creditor no execution could lawfully issue until the judgment was revived by scire facias. (2 Tidd's Pr. 1117-20; Regina v. Ford et al., 2 Raym. 768; 2 Sandf. 6 a, note 1; 2 Raym. 1072; Washington Ins. Co. v. Slee, 2 Paige Ch. 365; 1 Williams on Ex'rs, 766; Pennoir v. Brace, 1 Salk. 319.)

BLISS, Judge, delivered the opinion of the court.

In 1858 Clement White, deceased, gave to the plaintiff a bond for a deed of the land in controversy. Soon afterward the plaintiff left the State, leaving the land in charge of said White, who rented the same and collected the rents. Gaston had executed to White his note at twelve months for the purchase money, and left with him some small claims to collect and apply upon it. In 1860 said White instituted proceedings in the Marion Circuit Court to collect the note and enforce his lien upon the property, made Gaston a party by publication, and, after crediting him with a balance of accounts between rents collected and sundry expenses, obtained judgment for $3,652.60, with an order for a special execution against the property, directing the sheriff to sell the interest of said Gaston in the same. In 1862 Clement White died intestate, and letters were granted to two of the defendants. In January, 1863, these administrators, without revivor, sued out a special execution reciting the judgment, the death of White, and the letters of administration, which execution commanded the sheriff to sell the interest of Gaston in the property; and upon the execution the administrators caused a credit of over $900 to be entered, for rents collected by deceased. The property was bid in by defendant, Henry C. White, for the benefit of the heirs of deceased, and for the sum of $3,000, and the sheriff made him a deed. In a division of the estate this property was allotted to Henry C. and John White, and valuable improvements have been made upon it.

The present suit was instituted in 1863, against the heirs of Clement White, to enforce a specific performance of a title bond given him in 1858. We should have no hesitation in saying that in consequence of his laches in fulfilling his part of the contract, the plaintiff had no equity, but from the fact that the defendants, so far from taking advantage of such negligence and rescinding or even disregarding the contract, down at least to the time of the sheriff's sale, constantly affirmed it. Since then the possession has been in hostility to the claim of the plaintiff.

The defendants in possession chiefly rely upon their purchase of the plaintiff's interest at sheriff's sale. He, on the other hand, claims that he lost nothing by that sale, for two reasons: first, that the judgment was irregular, being for the sale of his interest instead of the property itself; and, second, that the execution possessed the same infirmity, and, in addition, was issued in the name of the administrators without being formally revived.

That irregularities and errors in the rendition of judgments do not affect the validity of sales under executions issued upon such judgments, is not disputed, although this doctrine does not go to the extent of validating sales under void judgments, as where the court had no jurisdiction. And, also, executions irregularly issued are generally held to be good, except in a direct proceeding to quash. (Landis v. Perkins, 12 Mo. 238; Carson v. Walker, 16 Mo. 68.)

Firstly, we are to inquire...