Jackson County v. Stone

Decision Date21 May 1902
PartiesJACKSON COUNTY v. STONE.
CourtMissouri Supreme Court

Rev. St. 1899, § 9832, provides, where public school funds are loaned by the county court, they shall be secured by bond and mortgage. Section 9833 provides such mortgage shall be conditioned that on default the sheriff may, on notice, without suit, sell the premises. Section 9835 provides that, when money secured by the mortgage is due, the county court may order the sheriff to levy on the mortgaged property, and a copy of such order shall have the effect of a fieri facias on a judgment of foreclosure, and shall be proceeded with accordingly. Section 4352 provides that the execution to be issued, in suit in the circuit court to foreclose a mortgage, shall be a special fieri facias, and be executed and returned as executions in ordinary civil suits. Held, that the fees of the sheriff on selling under the order of the county court were not those provided by section 4369 for compensation of trustees under trust deed, and which, under section 3290, would go to the sheriff, but were fees provided by section 3245 for receiving money on execution, which, under section 3290, go to the county.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by Jackson county against Robert S. Stone. Judgment for defendant. Plaintiff appeals. Reversed.

John A. Sea, for appellant. Edw. C. Wright, for respondent.

BRACE, P. J.

The plaintiff is a county having "a population of 100,000 and less than 300,000." The defendant is the sheriff of that county. In such counties, the sheriff for his official services is paid a salary out of the county treasury, and is required to collect, account for, and pay all the fees of his office into the county treasury except "his commissions as trustee, received from acting as trustee, in any deed of trust or mortgage with power of sale." 1 Rev. St. 1899, c. 27, art. 2, § 3290.

The school law requires: That, whenever any moneys belonging to the public school funds shall be loaned by the county courts, the same shall be secured by bond to the county for the use of the fund to which the moneys belong, with personal security and a mortgage on real estate. 2 Rev. St. 1899, c. 154, art. 1, § 9832. That "such mortgage" shall be in the ordinary form of a conveyance in fee, shall recite the bond, and shall contain a condition that if default be made in payment of principal or interest "the sheriff of the county may upon giving twenty days' notice of the time and place of sale by publication in some newspaper published in the county if there be one published, and if not by at least six written or printed hand bills put up in different public places in the county, without suit on the mortgage, proceed and sell the mortgaged premises or any part thereof to satisfy the principal and interest and make an absolute conveyance thereof in fee to the purchaser, which shall be as effectual to all intents and purposes as if such sale was made by virtue of a judgment of a court of competent jurisdiction foreclosing the mortgage. * * *" Section 9833. That whenever the principal and interest, or any part thereof secured by such mortgage, "shall become due and payable the county court may make an order to the sheriff reciting the debt and interest to be received and commanding him to levy the same with costs upon the property conveyed by said mortgage, which shall be described as in said mortgage, and a copy of such order duly certified being delivered to the sheriff shall have the effect of a fieri facias on a judgment of foreclosure by the circuit court, and shall be proceeded with accordingly." Section 9835.

On the 11th of March, 1889, the county court of Jackson county loaned of the public school fund of said county to one David Waldo the sum of $24,000, to secure the payment of which on the 31st of December, 1889, with 8 per cent. per annum compound interest, he duly executed his bond with two sureties and a mortgage on 200 acres of land in Jackson county, in accordance with the requirements of sections 9832 and 9833, supra; and on the 8th of November said county, having first found that at that date there remained of the principal of said loan the sum of $21,000, and of the interest thereon the sum of $11,336.96, making a total of $32,336.96 long past due and unpaid, made an order of record to the sheriff of said county in accordance with the...

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6 cases
  • Maxwell v. Andrew County
    • United States
    • Missouri Supreme Court
    • January 4, 1941
    ...218 Mo.App. 490, 279 S.W. 195; Nodaway County v. Kidder, 129 S.W.2d 857; State ex rel. Wedenking v. McCraken, 60 Mo.App. 565; Jackson County v. Stone, 168 Mo. 577. (2) The performed by appellee and his deputy sheriffs, for which the additional fees or salary or mileage was paid, were with r......
  • Smith v. Pettis County
    • United States
    • Missouri Supreme Court
    • January 23, 1940
    ...Bros. College, 257 Mo. 549; Bowers v. Mo. Mut. Assn., 62 S.W.2d 1058; Darlington Lbr. Co. v. Mo. Pac. Ry. Co., 216 Mo. 658; Jackson County v. Stone, 168 Mo. 577; Nodaway County v. Kidder, 129 S.W.2d Sanderson v. Pike County, 195 Mo. 598; State ex rel. v. Adams, 172 Mo. 1; State ex rel. O'Co......
  • State ex rel. Forsee v. Cowan
    • United States
    • Missouri Supreme Court
    • November 14, 1955
    ...Mo. 675; State ex rel. Evans v. Gordon, 245 Mo. 12, 149 S.W. 638; Sanderson v. Pike County, 195 Mo. 598, 93 S.W. 942; Jackson County v. Stone, 168 Mo. 577, 68 S.W. 926; State ex rel. Troll v. Brown, 146 Mo. 401, 47 S.W. 504; Bates v. City of St. Louis, 153 Mo. 18, 54 S.W. 439, 77 Am.St.Rep.......
  • Jackson County v. Stone
    • United States
    • Missouri Supreme Court
    • May 21, 1902
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