Hobein v. Murphy
| Decision Date | 31 March 1855 |
| Citation | 20 Mo. 447 |
| Parties | HOBEIN, Respondent, v. MURPHY, Appellant. |
| Court | Missouri Supreme Court |
1. The notice of execution required by the act of March 12, 1849, to be given to a judgment debtor, who is a non-resident of the county in which the land to be sold is situated, is not necessary in a sale of mortgaged land under a special fi. fa.
2. The omission to give the required notice, even in those cases where it is necessary, would not ipso facto render the sale void, but the party injured would have relief according to circumstances. If the party whose duty it was to give the notice had acquired the title, the sale might be set aside in a direct proceeding, and the property restored. If a fair purchaser had paid the price and received a conveyance, the remedy would be confined to pecuniary damages against the wrong doer.
Appeal from Franklin Circuit Court.
This was a petition filed in 1854, praying the Circuit Court to set aside a sheriff's deed to Murphy for land in Franklin county, sold under a special execution against the plaintiff upon a judgment of foreclosure of a mortgage. The sale took place October 3, 1850, and the sheriff's deed was dated March 24, 1851.
It was admitted that, at the time of the sale, the plaintiff was a resident of St. Louis county, and had no notice of the issuing of the execution under which the sale took place. The Circuit Court thereupon rendered judgment setting aside the sheriff's deed, but requiring plaintiff to refund to Murphy the amount of his bid. From this judgment, Murphy appealed.
N. Holmes, for appellant, insisted that no notice was necessary, a sale under a judgment of foreclosure not being within the meaning of the act requiring notice; also that the act did not apply where the land was in the same county where the judgment was rendered.
Stevenson and Delafield, for respondent.
1. The notice of execution required by the act of 12th March, 1849, to be given to a judgment debtor, who is a non-resident of the county in which the land to be sold is situated, is not necessary in a sale of mortgaged land made under a special fieri facias.
Although the language of the statute is general, embracing in its words all the execution sales of land situated in a different county from that in which the judgment debtor resides, we think it must be limited in its operation to cases falling within the mischief intended to be remedied; and that this is clearly not a sale of...
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Young v. Schofield
...known to him, and therefore there is no reason for our considering such a case as falling within the requirements of the statute." Hobein v. Murphy, 20 Mo. 447. next case arising was that of Ray v. Stobbs, 28 Mo. 35. There personal service was had on the defendant and judgment rendered befo......
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American Wine Co. v. Scholer
...to the property, if the purchaser himself is not in fault. Hamilton v. Shrewsbury, 4 Rand. 427; Ponder v. Mosely, 2 Fla. 207; Hobein v. Murphy, 20 Mo. 447; Lenox v. Clark, 52 Mo. 115; Lawrence v. Speck, 2 Bibb. 40; Pollard v. King, 63 Ill. 36; Curd v. Lackland, 49 Mo. 451; Smith v. Randall,......
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Young v. Schofield
...is authorized by law. Jones v. Driskill, 94 Mo. 190, 7 S. W. 111; Irvine v. Leyh, 124 Mo. 361, 27 S. W. 512. The reasoning of Hobein v. Murphy, 20 Mo. 447, is entirely satisfactory, because in that case the law required the mortgaged property to be first sold before the execution could be l......
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...sought to be avoided and the remedy intended to be afforded. 25 R. C. L. 1015; Heydon's Case, 3 Coke 7a, 14 Eng. Rul. Cas. 816; Hobein v. Murphy, 20 Mo. 447. Where there conflict, or supposed conflict, between earlier and later enactments, it will be presumed that the later were enacted wit......