Johnson v. Mckinnon

• Decision Date: 29 October 1907
• Citation: 54 Fla. 221,45 So. 23
• Parties: JOHNSON et al. v. McKINNON.
• Court: Florida Supreme Court

45 So. 23

54 Fla. 221

JOHNSON et al. v. McKINNON.

Florida Supreme Court, Division B.

October 29, 1907

Error to Circuit Court, Jackson County; Francis B. Carter, Judge.

Action by Seth Johnson and others against Daniel L. McKinnon. Judgment for defendant. Plaintiffs bring error. Reversed.

Syllabus by the Court

SYLLABUS

A recital in a sheriff's deed that the sale of the property was made by virtue of an execution issued out of the circuit court is sufficient to show that the officer had authority to sell, although it would be well for the sheriff to recite in his deed both the judgment and execution under which he acted, as it would be productive of convenience, pointing the sheriff to his authority to sell, and facilitating the purchaser in tracing his title.

Jurisdiction is judicial power, and a decree entered in a proceeding as to a matter outside of the judicial sphere of action is not merely voidable, but absolutely void.

A deficiency decree may be entered only in suits for the foreclosure of mortgages. When rendered in an action to enforce a vendor's lien, such decree is absolutely void not simply irregular or voidable, and is subject to collateral attack.

The law imputes to an attorney knowledge of defects in legal proceedings for the sale of property taken under his direction, and the title of such attorney to land purchased by him at a judicial sale decreed in proceedings in which he acted as an attorney falls with the reversal of the decree directing the sale.

COUNSEL

Benj. S. Liddon, for plaintiffs in error.

Daniel L. McKinnon, for defendant in error.

OPINION

PARKHILL J.

The plaintiffs in error brought an action of ejectment in the circuit court for Jackson county against the defendant in error for the recovery of certain lands lying in said county. There was trial by jury, and judgment for defendant. It is admitted that, as to all the lands in controversy except 40 acres in section 23, township 5 N., range 13 W., both the plaintiffs and defendant claimed title from the same source one P. P. Johnson, deceased. The plaintiffs claimed title as heirs at law of the said P. P. Johnson, and the defendant claimed title by virtue of a sheriff's deed, made on an execution sale under a judgment recovered by one Alexander D McKinnon against Seth Johnson, as administrator of P. P. Johnson. The defendant seems to have established his title to the 40 acres in section 23 by virtue of a tax deed, and there is no controversy between the parties concerning this part of the locus in quo.

The defendant offered in evidence the sheriff's deed of February 9, 1898, conveying to him the lands involved in this suit, except the 40 acres already mentioned; said deed reciting that the sheriff, 'by virtue of an execution issuing out of the circuit court of Jackson county, Florida, on the 22d day of December, A. D. 1897, wherein Alexander D. McKinnon was plaintiff and Seth Johnson, as administrator of P. P. Johnson, deceased, was defendant,' levied upon and sold the lands described therein to D. L. McKinnon for the sum of $49.25. To the introduction of said deed the plaintiffs objected, because 'the deed did not purport to be predicated upon a judgment, but only that it was predicated upon an execution.' The objection was overruled, and the plaintiff excepted, and this ruling is made the first assignment of error. Section 1634, Gen. St. 1906, provides that, whenever a sale shall be made by virtue of any execution, the officer making the sale shall execute to the purchaser a deed of conveyance of the property sold. It does not prescribe the facts which shall be stated in the deed, or that the judgment under which the sheriff acted shall be recited. This deed recites sufficient to show that the officer had authority to sell and that the sale was made by virtue of an execution issued out of the circuit court; and that is all that is necessary, although it would be well for a sheriff to recite in his deed both the judgment and execution under which he acted, as it would be productive of great convenience, pointing the sheriff to his authority to sell, and facilitating the purchaser in deriving his title. 17 Cyc. 1344; Howard v. North, 5 Tex. 290, 51 Am. Dec. 769; Clark v. Sawyer, 48 Cal. 133; Jordan v. Bradshaw, 17 Ark. 106, 65 Am. Dec. 419; Perkins v. Dibble, 10 Ohio, 433, 36 Am. Dec. 97; Jones v. Scott, 71 N.C. 192.

The defendant offered in evidence a decree in the cause of Alexander D. McKinnon v. Seth Johnson, as administrator of P. P. Johnson, deceased, and other parties, heirs at law of P. P. Johnson, deceased. This decree was rendered by the judge of the circuit court for Jackson county on the 19th day of October, A. D. 1897. It provided that the complainant, A. D. McKinnon, have and recover of and from the defendant Seth Johnson, as administrator of the estate of P. P. Johnson, deceased, the sum of $2,523 damages, and that the said complainant have a vendor's lien upon certain lands described in the bill of complaint and in this decree, and required the said Seth Johnson, as said administrator, to pay the said sum within 10 days, and in default thereof one James C. McKinnon, appointed special master, was directed to sell the lands described and to report his acts and doings to the court. The lands described in said decree are not involved in the instant case.

The defendant offered in evidence a deficiency decree, made by the circuit judge on the 17th day of December, 1897, in the same cause of A. D. McKinnon v. Seth Johnson, as administrator, and the other parties mentioned in the decree of October 19, 1897, declaring a vendor's lien. This deficiency decree recited the coming on of the cause to be heard upon application to confirm the report of the sale made by J. C. McKinnon, as special master, in pursuance of the decree rendered on the 19th day of October, A. D. 1897, and confirmed said sale, directed a deed to be executed by the master, and provided further as follows: 'And it appearing that there is still a balance due the complainant from the said Seth Johnson, as administrator of the estate of P. P. Johnson, deceased, upon the said decree rendered on the 19th day of October, A. D. 1897, as principal and interest to date, after deducting the sum of $410 for which the land described in said decree sold, of $1,737.49 as costs expended by the complainant in and about this suit, it is therefore further ordered, adjudged, and decreed that the complainant have and recover of the defendant Seth Johnson, as administrator of P. P. Johnson, the said sum of $1,737.49, together with the sum of $53.71 costs, and that execution do issue therefor, to be levied and collected of the goods, chattels lands, and tenements of the said P. P. Johnson in the hands of the said Seth Johnson as administrator.'

The defendant offered in evidence an execution in words and figures following: 'State of Florida, County of Jackson.

'To All and Every Sheriff of the State of Florida--Greeting: You are commanded that of the goods and chattels, lands and tenements, of Seth Johnson, as administrator of the estate of P. P. Johnson, deceased, you cause to be made the sum of $1,737.49, which lately, on the 17th day of December, 1897, in our circuit court of Jackson county, of the state of Florida, held at the courthouse in Marianna, in and for the county of Jackson, was recovered against Seth Johnson, as administrator of P. P. Johnson, deceased, by Alexander D. McKinnon for damages, with legal interest thereon until paid, together with $53.71 for his costs by said Alexander D. McKinnon in and about said suit in that behalf expended, whereof the said Seth Johnson, as administrator of the estate of P. P. Johnson, deceased, is convicted, as appears to us of record, and that you have the same before the judge of our said court, at the courthouse in Marianna aforesaid, when satisfied, to satisfy the said Alexander D. McKinnon damages, interest, and costs aforesaid, and have then and there this writ.'

The indorsements upon this execution show that it was levied on lands involved in the instant case, and conveyed to Daniel L. McKinnon, the defendant herein, by sheriff's deed already mentioned. The defendant offered in evidence the letters of administration of Seth Johnson, as administrator of P. P. Johnson, deceased. All these papers, decrees, execution, and letters of administration were objected to by plaintiffs; but the court overruled the objections, and plaintiffs excepted.

The second assignment of error is founded upon the admission in evidence of the deficiency decree of the 17th day of December, 1897, in the cause of Alexander D. McKinnon v. Seth Johnson, Administrator, et al. The objections to the introduction of this decree are that it is void, not authorized by law, and that the court was without authority or jurisdiction to render a deficiency decree in the cause wherein it was rendered.

A decree rendered by a court having jurisdiction of the parties and the subject-matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect to its validity, verity, or binding effect, by parties or privies in any collateral action or proceeding. 23 Cyc. 1055; Rushing v. Thompson's Executors, 20 Fla. 583, text 596.

Where the decree is such a one as the court had jurisdiction to render, the presumptions are all in favor of its regularity and validity until vacated by some proper proceeding instituted directly for the purpose of correcting errors therein, and cannot be attacked collaterally. Lee v Patten, 34 Fla. 149, 15 So. 775; Finley v. Chamberlin, 46 Fla. 581, 35 So. 1. A decree that is absolutely null and void, however, may be collaterally assailed. But the decree that is voidable...