Hardin v. McCanse

• Decision Date: 31 July 1873
• Parties: JAMES F. HARDIN, Plaintiff in Error, v. WM. A. MCCANSE, et al., Defendants in Error.
• Court: Missouri Supreme Court

53 Mo. 255

JAMES F. HARDIN, Plaintiff in Error,

v.WM. A. MCCANSE, et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1873.

Error to Greene Circuit Court.

J. P. Ellis and J. F. Hardin, for Plaintiff in Error.

I. The several executions issued against Brown and Thomas in favor of Lacy, after the death of Brown, were void, and the purchaser under them took no title. (See, § 20, p. 741, R. C., 1855; 4 How., 58, leading cases in part; 6 Ala., 657; 4 Ala., 735; 19 Mo., 650; 16 Mass., 190; 4 Wall., 237, in point; 2 McLean, C. C., 59; 4 Iredell L. R., p. 377; Woodcock vs. Bennett, 1 Cow., 738.)

McAfee & Phelps, for Defendants in Error.

I. The execution was not void. (Johnson vs. Lynch, 3 Bibb., 334; 6 Blackf., (Ind.) 93; Bowdoin vs. Jordan, 9 Mass., 154; 2 Saund. (Eng.) p. 72; 2 Tidd's Pr., 1009; Shelton vs. Hamilton, 23 Miss., 496; Hodge vs. Mitchell, 27 Miss., 560; Coleman vs. McAnulty, 16 Mo., 173; Warder vs. Tainter, 4 Watt., 270; Day vs. Sharp, 4 Whart., 339; Douglas vs. Marsie, 16 Ohio, 271.)

II. In the case of Woodcock vs. Bennett, 1 Cow., p. 738, the only case cited by appellant, in which there was a living defendant and also a dead one; unlike the one here, the dead man's property was also sold. And further, it will be observed, that the validity of the sale under that execution was not the question upon which the case was determined. The point was never raised in the court below, or by counsel in the case in any of the courts.VORIES, Judge, delivered the opinion of the court.

This was an action of ejectment brought in the Circuit Court of Lawrence county by Robert Kimmons against McCanse and Paris, for the recovery of certain lands in the petition named, situate in said county. The venue of said cause was afterwards changed, by the agreement of the parties, to the Circuit Court for Greene county. After the commencement of the suit, James F. Hardin was substituted for Kimmons as party plaintiff upon his own motion.

The answer of the defendants denies all right in the plaintiff, in or to the east half of lot six of the northwest fractional quarter of section three, and the west half of lot six of the northeast fractional quarter of section three, southeast quarter of the southeast quarter of section eleven, or the north half of northeast quarter of section fourteen, all in township 29 of range 26, as described and charged in plaintiff's petition. As to the remainder of the land in the petition, defendants wholly disclaim any right or claim thereto, or that they have ever had any possession thereof, and deny the other allegations of the petition. Both parties claimed title to the lands in controversy by title derived from and through one Andrew W. Thomas; the plaintiff, by deed from said Thomas to Robert Kimmons, dated May 7th, 1861, and a deed from said Kimmons to himself, dated November 9th, 1867.

The defendant claimed title to part of the land in controversy, as set forth in his answer, by virtue of a deed from one Henry Childress, as Sheriff of Lawrence county, conveying said lands to defendants, dated November 12th, 1863, which said deed recited a judgment rendered by the Circuit Court of Lawrence county, in favor of Benjamin F. Lacy, as plaintiff, and against Alexander Brown and Andrew W. Thomas, rendered on the 13th day of November, 1860, the issue of an execution on said judgment, on the second day of October, 1863, directed to the Sheriff of said county, and a levy and sale of the same as the property of said Thomas, and to the other part or balance of the land named in his answer, by virtue of a deed from said Sheriff, dated November 26th, 1866, reciting the same judgment, the issue of an execution thereon, on the 13th day of April, 1864, the levy of the same on the residue of said land as the property of said Brown and Thomas, and the advertisement and sale thereof to the defendants. The plaintiff objected to the reading of these deeds in evidence on the trial, because first, the judgment recited in said deeds and on which the executions were issued and the sales of the land made, were void, for the reason that no sufficient service of notice or summons was ever made on either of the defendants therein. Second, because Alexander Brown, one of the defendants in said judgment, was dead before either of said executions were issued, and said executions were issued against both of the defendants; for which reasons the sale and all proceedings under them were void, and the deeds therefore could pass no title to defendants. Third, because one of the defendants (Andrew W. Thomas) was in the State of Texas before either of said executions were issued, or said sales and deeds were made, namely, from February, 1862, to February, 1867, and within a disloyal district, and therefore said executions were void. Upon the hearing of these several objections to the admissibility of said Sheriff's deeds in evidence, the following facts were admitted to exist by the parties:

“That Andrew W. Thomas lived in Missouri until February, 1862: that he then went into the State of Texas, and into a portion of said State which was disloyal to the government of the United States; that he remained in said State, and in said section of said State, until February, 1867; that said portion of said State of Texas, was not, after February, 1862, occupied, held or controlled at any time by the military or naval forces of the United States, until May, 1865; that said Thomas had a wife and family when he went to Texas, and that they remained and resided in the State of Missouri during his whole residence in Texas, and until he returned. It was further agreed by the parties, that Alexander Brown, against whom, with A. W. Thomas, certain judgments were rendered in the Lawrence Circuit Court, and under which judgments the defendants claim title to the land in controversy, died in the State of Texas, on the 13th day of January, 1863.

The entire record of the judgment and proceedings in the case of Lacy vs. Brown and Thomas was then read in evidence to support the objections of plaintiff to the service of a summons on defendants Brown and Thomas in said cause.

The court, after hearing all of the evidence in support of the objections urged to the receiving of said Sheriff's deeds in evidence, overruled said objections, and admitted said deeds in evidence. To which ruling of the court the plaintiff excepted. After this the plaintiff suffered a non-suit, with leave of the court to move to set the same aside, and afterwards filed his motion to set aside said non-suit, assigning as reasons therefor:

First--Because the court erred in admitting in evidence the said deeds given in evidence by the defendants.

Second--Because the court erred in overruling the objection made by plaintiff to the introduction of the deeds offered by the defendants.

This motion being overruled by the court, the plaintiff again excepted, and has brought the case to this court by writ of error.

It is objected by the plaintiff in error in this case to the reading of the deeds of the Sheriff in evidence, that it appears from the record in the said case of Lacy vs. Brown and Thomas, that no sufficient service was made of the summons in the case to give jurisdiction to the court over the parties defendant, and that the proceedings and judgment are therefore void. The service, as the same appears by the Sheriff's return, is as follows:

“Executed the within summons by leaving a copy of the petition and writ at the usual place of abode of the within Alexander Brown, with a white person of his family over the age of fifteen years, he being the first one served, and on the defendant, Andrew Thomas, by delivering to the said Andrew Thomas a copy of the writ of summons. All done in Lawrence county, Missouri, on the 17th day of April, 1860.”

This return is not only in substantial conformity to, but it is an exact compliance with, the Statutes of 1855 (which was in force at the time) in reference to the service of process of summons in this State. (Statutes of 1855, p. 1223, § 7.) The objection to the deeds, on the ground of the insufficiency of the service of the summons, was therefore properly overruled. It was next objected to the admissibility of said deeds in evidence, on the ground that Andrew W. Thomas, one of the defendants in the case of Lacy vs. Thomas and Brown, after the rendition of the judgment against him, left his home in the State of Missouri, before the issue of the executions under which the land was sold, and went into the State of Texas, in a portion thereof, which was disloyal to the United States government, and not under the control of any part of the authorities of the United States, where he remained until after the sale of the land in controversy under said executions.

It is difficult to see how the mere fact that Thomas voluntarily left the State, after a judgment had been rendered against him, and that he went into Territory, occupied by the confederate forces, could of itself paralyze the arm of the law in this State, and destroy the jurisdiction of the courts and the laws over his property situated here; but be that as it may, it has been decided, by a late case in this court, that such matters can not be inquired into in a collateral way upon a trial of an action upon ejectment. (Groner vs. Smith, 49 Mo., 318.) If follows that the second ground of objection made to said deeds was also properly overruled by the Circuit Court. The only remaining ground of objection, insisted on to the admissibility of said deeds, is, that one of the defendants in the judgments and executions, upon which the sheriff sold the land in...