Hutchinson v. Cassidy

Citation46 Mo. 431
PartiesEDWARD HUTCHINSON, Appellant, v. JAMES A. CASSIDY AND LINN COUNTY, Respondents.
Decision Date31 August 1870
CourtUnited States State Supreme Court of Missouri

Appeal from Fourth District Court.

G. D. Burgess, for appellant.

I. Even if the sheriff sold the land at private sale, he did not transcend his authority. (Wagn. Stat. 867, § 3.)

II. The defendants, Linn county, and Cassidy claiming under it, are estopped from denying that the land was sold by the sheriff at public sale, by the recitals in the sheriff's certificate. (2 Washb. Real Prop. 488, § 51; Wash v. Willard, 13 N. Y. 389; 4 Kent, 283; Stowe v. Win, 7 Conn. 214; Carver v. Jackson, 4 Pet 83; Jackson v. Parkhurst, 9 Wend. 209; McClerhy v. Leadbeater, 1 Kelly, 551; Bean v. Parker, 17 Mass. 591; Wilkerson v. Scott, id. 247; Ketes' Heirs v. Shrader, 3 Litt. 447; Pennington v. Northern Ill. R.R. Co., 46 Ill. 297; Smith v. Price, 39 Ill. 28; Marshall v. Gridley, 46 Ill. 247.)

III. The parol evidence to contradict the recitals in the certificate of purchase issued by the sheriff to Hutchinson, especially when offered by the county, should have been rejected. Such evidence is inadmissible. (1 Greenl. Ev. 312, § 275; Reed v. Heirs of Austin, 9 Mo. 731, and authorities cited; Caldwell v. Layton, 44 Mo. 221; Jackson v. Gray, 12 Johns. 428; Jackson v. Vanderhayden, 17 Johns. 168; Stowe v. Vance, 6 Ohio, 249.)

A. W. Mullins, for respondents.

I. The sheriff had no right to sell the land at private sale. (Wagn. Stat. 867, § 3.) Such sale was invalid, and the plaintiff acquired no right to the property thereby. (McCormick v. Fitzmorris, 39 Mo. 31; Voorhies v. Bank of United States, 10 Pet. 449, 474-9; Moreau v. Detchemendy, 18 Mo. 522; Moreau v. Branham, 27 Mo. 351; 1 Sto. Eq., § 177.)

II. The rule as to contradicting written contracts does not apply where the action is between a party to the contract and a third person. Therefore the evidence contradicting the recitals in the sheriff's certificate to the plaintiff was proper and competent for that purpose. (1 Greenl. Ev., § 279; 2 Phill. Ev. 697. 4th Am. ed.; 2 Pars. Cont. 556-7, 5th ed.)BLISS, Judge, delivered the opinion of the court.

On the 7th of August, 1866, the County Court of Linn county made an order directing the sheriff to “proceed and advertise and sell the swamp and overflowed lands belonging to Linn county, commencing on the 10th day of September, and continuing said sale from day to day until all is sold,” etc., etc. The sheriff gave plaintiff a regular certificate of sale under said order, for eighty acres of such land, reciting that he offered the same for sale at public auction at the door of the court-house, etc.; that the plaintiff was the highest and best bidder for the same, having bid $160, giving security, etc.

The plaintiff brought his action for a title, making Cassidy, who subsequently purchased of the county, a party. The court below found that the sale was not made by the sheriff at the time of the public sale, as recited in his certificate, but three days thereafter, and at private sale, and it thereupon held the sale to have been invalid and not binding on the county. The plaintiff makes various objections to this holding, and claims, first, that the order of the County Court did not require that the sale should be at public auction. But the statute does require that the sale should be “at public vendue, to the highest bidder,” and the sheriff was imperatively controlled by its requirements (Wagn. Stat. 867, § 3), and it does not matter whether the order of the County Court contained the requirement or not. Second, the plaintiff objected, upon the trial, to any evidence contradicting the recitals of the sheriff's certificate, and claims that the county and those who hold under it are conclusively bound by them.

The general subject of the power of public officers to bind the public by their official acts, and the necessity of conforming to the law in order to give any validity to their action, has been recently considered at length by this court in The State v. Bank of Missouri, 45 Mo. 528. We do not understand that the present plaintiff contests the doctrine of that case, or claims that...

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7 cases
  • Sturgeon v. Hampton
    • United States
    • Missouri Supreme Court
    • October 31, 1885
    ...ultra vires. St. Louis v. Gorman, 29 Mo. 593; Rossire v. Boston, 4 Allen (Mass.) 57; McFarland v. Kerr, 10 Bosw. (N. Y.) 249; Hutchinson v. Cassidy, 46 Mo. 431, 434; State v. State Bank, 45 Mo. 528; Walcott v. Lawrence Co., 26 Mo. 372. (11) There was no error in allowing the parol evidence ......
  • In re Receivership of Great Western Beet Sugar Co.
    • United States
    • Idaho Supreme Court
    • July 15, 1912
    ... ... auction as directed by the order, but in fact was simply a ... private sale, and is therefore void. (Hutchinson v ... Cassidy, 46 Mo. 431; Fambro v. Gantt, 12 Ala ... 298; Neal v. Pattern, 40 Ga. 363.) ... Judicial ... sales must be made in ... ...
  • Prior v. Scott
    • United States
    • Missouri Supreme Court
    • October 31, 1885
    ...Wilson, 61 Mo. 239; R, S., secs. 6200-2; Railroad Co. v. Smith, 41 Mo. 310. Laws 1857, 391-4; State v. State Bank, 45 Mo. 528; Hutchinson v. Cassidy, 46 Mo. 431. (2) The defendant, on the other hand, showed a vId title to the land. The misdescription of the land misled no one, and was satis......
  • Pool v. Brown
    • United States
    • Missouri Supreme Court
    • October 1, 1889
    ... ... void and should have been so held. Acts, 1868, p. 68, sec. 3; ... Acts, 1869, p. 66, sec. 6; Hutchison v. Cassidy, 46 ... Mo. 431; Sturgeon v. Hampton, 88 Mo. 231; St ... Louis Co. v. Sparks, 10 Mo. 117. (3) The land in ... controversy was never in the limits ... ...
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