Houck v. Cross

• Decision Date: 31 October 1877
• Citation: 67 Mo. 151
• Parties: HOUCK et al., Appellants v. CROSS.
• Court: Missouri Supreme Court

67 Mo. 151

HOUCK et al., Appellants

v.CROSS.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Cape Girardeau Circuit Court.--HON. D. L. HAWKINS, Judge.

Houck & Ranney for appellants.

The execution must accurately follow the judgment. 1 Robinson's Practice, p. 508; Bain v. Chrisman, 27 Mo. 294; Lillington's Case, 7 Coke 33, 59; Herman on Ex. p. 42, § 55. The judgment was doubtless merely revived against the goods and chattels, because the heirs and devisees interested in the real estate of Steinbeck were not made parties to the scire facias. Erwin's Lessee v. Dundas, 4. How. 78. A sale made before the day advertised, is not only a sale without notice, but a sale under circumstances calculated to deter bidders, and prima facie would appear to be fraudulent. Mers v. Bell, 45 Mo. 345.

Dennis & Wilson for respondent.

The judgment against Byrne, executor, &c., directing execution to issue against the goods and chattels, &c., was a mere clerical error. It is the policy of the law that the title of purchasers acquired at judicial sales, shall be maintained, and a sale may be valid though the statutory requirements may not be complied with. Herman on Ex., p. 512, § 342. The deed of the sheriff to John Cross conveyed Steinbeck's title. Stewart v. Severance, 43 Mo. 322; Lenox v. Clark, 52 Mo. 115; Union Bank v. Mc Wharters, 52 Mo. 34.

HOUGH, J.

This was an action of ejectment for a lot in the city of Cape Girardeau, in which judgment was rendered for defendant. Plaintiffs and defendant both claimed under D. F. Steinbeck, as the common source of title. The defendant claimed title under an execution sale of the interest of the common grantor, Steinbeck, in the lot sued for, and on the validity of this sale and the deed made by the sheriff in pursuance thereof, depend the rights of the parties. The circumstances of the sale are as follows: On April 19th, 1822, one Conrad Schultz obtained a judgment in the circuit court of Cape Girardeau county, against D. F. Steinbeck, for the sum of $3,790.91 debt, and $804.92 damages. On the 23rd of December, 1825, Steinbeck having in the meantime died, this judgment was, by scire facias revived against his executor. The judgment on scire facias concludes as follows: “It is therefore considered by the court that the said judgment be and stand revived against the said Thomas Byrne, executor as aforesaid, and that the said plaintiff have execution against the said Thomas Byrne, executor as aforesaid, for the said sum of three thousand seven hundred and ninety dollars and ninety-one cents for debt, and the sum of eight hundred and four dollars and ninety-two cents for damages, together with legal interest thereon from the nineteenth day of April, A. D. 1822, (the day of the rendition of the judgment aforesaid,) until now, and that he have and recover against defendant his costs and charges in and about his scire facias expended, and to be made of the goods and chattels of the said Daniel F. Steinbeck, deceased, remaining in the hands of said Thomas Byrne, executor aforesaid, to be administered, &c.” This entry is evidently incomplete as its termination shows, but it must be considered as it appears in the record.

The execution issued upon this judgment was in conformity with the second section of the revised statutes of 1825, in relation to executions, and commanded the officer “that of the goods and chattels of the said Daniel F. Steinbeck, deceased, remaining in the hands of the said Thomas Byrne, executor as aforesaid, to be administered, you cause to be made the aforesaid debt, damages, interest and costs, and if sufficient goods and chattels which were of the said Daniel F. Steinbeck, deceased, cannot be found in your county, then of the lands and tenements which were of the said Daniel F. Steinbeck, deceased, at the time of his death, you cause to be made the debt, damages and costs,” & c. Under this execution the lot in question was sold, and the ancestor of the defendant became the purchaser.

1. JUDGMENT: execution: variance between them.

It is contended by the plaintiff that there is a fatal variance between the judgment and the execution. It is not denied that the execution was issued upon the judgment above recited, as that is established beyond question by the recitals in...