Jones v. Mack

• Decision Date: 31 July 1873
• Citation: 53 Mo. 147
• Parties: ALBERT JONES, Appellant, v. GODFREY MACK, Respondent.
• Court: Missouri Supreme Court

53 Mo. 147

ALBERT JONES, Appellant,
v.
GODFREY MACK, Respondent.

Supreme Court of Missouri.

July Term, 1873.

Appeal from Johnson Court of Common Pleas.

Phillips & Vest, and Crittenden & Cockrell, for Appellant.

I. The sale by the sheriff in the case at law, no order being issued to him by the County Court, was coram non judice, and the deed made by him to defendant passed no title.

a. When statutory powers are conferred on aninferior tribunal of limited and statutory powers, and a mode of

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executing such powers is prescribed, the mode prescribed must be strictly pursued, or the acts of such tribunal are coram non judice, and void. (English vs. Smock, 34 Ind., 115; 7 Amer. Rep., 215; Adam vs. Tiernan, 5 Dana., 394; Frees vs. Ford, (3 Seld.,) 6 N. Y. 176; Peacock vs. Bell, 1 Sand., 74, b.)

b. In the case of a mere power, unless where aided by statute, there is no foundation for its exercise but in its terms. If there is a departure from these, the act must of course fall to the ground for want of authority. (Norcum vs. D'Oench, 17 Mo., 117.)

c. The sheriff's deed, in case of sale under the statute in question, is like that of a sheriff under execution, or a trustee, or executor, having a mere naked power of sale under certain circumstances, and “must recite the power, and show on its face, that the contingency has happened, which would authorize the sale.” (Swartz vs. Page, 13 Mo., 611; Bruce vs. Duke, 2 Lit., 245; Sug. Power, 282, 232.)

White & Baldwin, for Respondent.

I. Granting that the want of an order by the court to the sheriff to sell, would leave the equity of redemption in Jones unforeclosed and existing; the sheriff having the power to convey the legal title to the premises--by his deed gave to the purchaser the legal title--and the mortgagor cannot maintain ejectment against him. (Pease vs. Pilot Knob Iron Co., 49 Mo., 124.)

II. The deed of the sheriff to the purchaser, made under the power in the mortgage, even if violating the terms of the trust, vests in the mortgagor the legal title, and the purchaser cannot maintain this action. (Am. Law. Reg., 2 N. S., 725, 726, § 31, and authorities there cited; Taylor vs. King, 6 Munf., 358; Harris vs. Harris, Id., 367; Gibson vs. Jones, 5 Leigh, 370; 13 Gratt., 601; 2 Patton & Heath, 240; 8 Leigh, 371; Reese vs. Allen, 5 Gill., 236; 12 Wheat., 570; Bank of U. S. vs. Benning, 5 Cranch, C. C., 81; Beatie vs. Butler, 21 Mo., 313; 4 G. Green, 468; Am. Law Reg., 2 N. S., 731, § 38.)

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III...