Jackson v. Magruder

Citation51 Mo. 55
PartiesWILLIAM A. JACKSON, Plaintiff in Error, v. RICHARD C. MAGRUDER AND L. B. MAGRUDER, Defendants in Error.
Decision Date31 October 1872
CourtUnited States State Supreme Court of Missouri

Error to Lincoln Circuit Court.

Dyer, Fagg & McKee, for plaintiff in error.

A. H. Buckner, for defendants in error.

ADAMS, Judge, delivered the opinion of the court.

The following statement made by the defendant in error, and concurred in by the plaintiff in error, forms the basis of this opinion, to-wit: “The plaintiff instituted his action of ejectment against the respondents, claiming to hold the legal title to the premises in dispute by virtue of a deed from the administrator of David Bailey, deceased, under whom the respondents also claimed title. The deed of the administrator of Bailey to plaintiff was executed on the 12th of May, 1864, and the sale was made at the February term, 1864, of the Lincoln County Court. It appeared from the report of sale that the advertisement of sale was made by printed handbills, and not by publication in a newspaper. The report of sale was approved by the Probate Court, and a deed ordered to be made to plaintiff. The defendants relied upon a mortgage executed by Bailey to the county of Lincoln, for the use of the school fund, executed February 11, 1863, and authorizing the sheriff of the county, without any suit on the mortgage, to sell the real estate mortgaged to satisfy the principal and interest, and to make an absolute conveyance in fee to the purchaser in case of default by the mortgagor; also an order of the Lincoln County Court directing the sheriff to sell the mortgaged premises; and also the deed of the sheriff of Lincoln county, dated September 23, 1864, referring to the order of the County Court and conveying the premises to the grantor of defendants. The sale thus made by the sheriff was made during the session of the County Court, and for this reason its introduction was objected to by plaintiff, but the objection was overruled. The defendants, in order to invalidate the title of plaintiff, read the appraisement of the real estate, as well as the petition for and report of the sale thereof, to show that the sale of Bailey's equity was neither petitioned for by the administrator nor appraised, but that the existence of the mortgage upon the real estate was ignored by the administrator, by the appraisers, and by the Probate Court in its order of sale.

The court decided that the paper title of defendants was a better title than the paper title of the plaintiff, and that plaintiff could not recover.

The defendants asked and the court gave the following declarations of law, against the objection of plaintiff:

“1. If the plaintiff purchased at the sale of the real estate of David Bailey, deceased, by his administrator, the right and title of said Bailey at the time of his death, in the real estate in controversy; and if, at the time of said sale, the mortgage to the county of Lincoln was in full force, unsatisfied and not foreclosed, the plaintiff only acquired the equity of redemption of said deceased Bailey in said real estate, and he cannot recover in this action.

2. If the county of Lincoln held a mortgage on the real estate in controversy at the time of the sale by Bailey's administrator to the plaintiff, and the application for the sale of the real estate was made without any reference to the mortgage or statement of the interest of deceased in said real estate, but said order of sale was made under the general powers of the Probate Court to sell real estate for the payment of debts, said sale of said real estate was absolutely null and void, and no title passed to plaintiff.

3. The mortgage of David Bailey to Lincoln county and the order of the Lincoln County Court in reference thereto, in evidence, gave full and ample authority to the sheriff to sell the real estate in controversy, and if he sold the same to one Gordon for a bona fide consideration at a public and fair sale before the courthouse door, and executed a deed to the purchaser thereof, said deed is sufficient to convey all the title thereto, notwithstanding said sale was made during a term of the County Court of Lincoln county.

4. If the sale by the administrator of Bailey to the plaintiff was not advertised for four weeks in some newspaper published in this State, but by only ten handbills, then said sale was not according to law in such cases provided, and no title passed to the plaintiff by his purchase at such sale.

5. The equity of redemption of David Bailey in the land in controversy could not be sold except by a special order of the County Court to that effect, and if the sale to the plaintiff was under a general order of the Probate Court to sell the same for the payment of the...

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60 cases
  • Turner v. Johnson
    • United States
    • United States State Supreme Court of Missouri
    • March 19, 1888
    ......Pershing, 57. Mo. 416; Henderson v. Henderson, 55 Mo. 534, 546. Redemption is favored in equity. 5 Wait, 420; 1 Wait, 208;. Jackson v. Moore, 6 Cowan, 706; Steere v. Steere, 5. Johns. Ch. 1. (8) The deed of trust under which the sale was. made required it to be at the ...R. S., secs. 3569, 3775; Conley v. Doyle, . 50 Mo. 234; Dunn v. Baley, 58 Mo. 134; Wilkerson. v. Allen, 67 Mo. 502; Jackson v. Magruder, 51. Mo. 55; Hambright v. Brockman, 59 Mo. 52. (14). "Upon the affirmance of any judgment or decision, or. upon the dismissal of any case, the ......
  • Price v. Springfield Real Estate Ass'n
    • United States
    • United States State Supreme Court of Missouri
    • June 16, 1890
    ...the judgment of the court below was manifestly for the right party, and should be affirmed. Hedecker v. Ganzhorn, 50 Mo. 154; Jackson v. Magruder, 51 Mo. 55; Lewis Curry, 74 Mo. 49; Fitzgerald v. Barker, 96 Mo. 661; Anderson v. Shockley, 82 Mo. 250; Hoskinson v. Adkins, 78 Mo. 537; State ex......
  • Robbins v. Boulware
    • United States
    • United States State Supreme Court of Missouri
    • June 20, 1905
    ...be collaterally attacked in this proceeding, and does not render the deed void. Sec. 164, R.S. 1879; McNair v. Hunt, 5 Mo. 301; Jackson v. McGruder, 51 Mo. 55; Curd Lackland, 49 Mo. 453; Evans v. Snyder, 64 Mo. 516; Draper v. Bryson, 17 Mo. 71; Young v. Schofield, 132 Mo. 668; Hauck v. Cros......
  • Vogg v. Missouri Pacific Railway Company
    • United States
    • United States State Supreme Court of Missouri
    • March 10, 1897
    ...Swearingen v. Orine, 8 Mo. 707; Garesche v. Deane, 40 Mo. 168; Hedecker v. Ganzhorn, 50 Mo. 154; Dunbar v. Weightman, 51 Mo. 432; Jackson v. Magruder, 51 Mo. 55; Sinclair v. Bradley, 52 Mo. 180; Nelson Foster, 66 Mo. 381; Noble v. Blount, 77 Mo. 235; Sebree v. Patterson, 92 Mo. 451; Deal v.......
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