Kane v. McCown

• Decision Date: 31 January 1874
• Parties: GEORGE KANE, Respondent, v. CAROLINE F. MCCOWN, Appellant.
• Court: Missouri Supreme Court

55 Mo. 181

GEORGE KANE, Respondent,

v.CAROLINE F. MCCOWN, Appellant.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Johnson Circuit Court.

Hicks & Nickerson, for Appellant.

I. The Circuit Court had no jurisdiction to hold courts at said meeting house, and its judgments, orders and decrees made thereat, without the appearance of parties and consent for trial or hearing, were void. (People vs. North up, 37 N. Y., 205; People vs. Sanchez, 24 Cal., 20; Ross vs. Austin, 2 Cal., 183; People vs. Bradwell, 2 Cowen 447.) And it had no power to transfer the place fixed by law for the sale of real estate under execution to any other place.

II. The authority of clerk to make an order of publication was limited to the vacation next preceding the return term of the writ, as the court, at the return term of the writ, had full control and jurisdiction over the subject matter. The word “vacation,” as used in this section, means the time intervening between the time of issuing the writ and the return day thereof. On the return day of the writ, the jurisdiction of the court commenced, and that of the clerk ceased. The act of January 14th, 1860, supplementary to an act to provide for suits by attachments of December 8, 1855, does not enlarge or restrain the jurisdiction of the court in making orders of publication. Both these acts must be taken and construed together.

III. If Christian executed the writ of execution by levying the same on the real estate in controversy, then it was his duty to have made the sale under the levy so made, notwithstanding his term of office may have expired before a term of the court was held at which a sale could have been made, and there was no warrant in the law for him to turn said execution over to his successor in office. See 62nd section of the execution law of 1855, page 749. But the cases of Dunnica vs. Coy, 28 Mo., 527; Carr vs. Youse, 39 Mo., 350; Larkey vs. Lubke, 36 Mo., 121; Merchants' Bank of St. Louis vs. Harrison, 442; show conclusively, that Christian made no such legal levy upon the land; that the writs remained in his hands unexecuted at the return term thereof, in October, 1864; that there was no levy made in the life-time of the executions; that they were functi officio when delivered to Williams on the 9th day of February, 1865. (Bank of Missouri vs. Bray, 37 Mo., 195.)

IV. The decree does not find that the sheriff's deed was delivered to Calhoun. Without delivery no title passed. (Barr vs. Schroeder, 32 Cal., 616.)

V. After the amendments and interlineations were made in the deed, it was not again acknowledged by the sheriff in open court. The requirements of the statute in this respect are imperative, and it has always been considered, that an acknowledgment of a sheriff's deed in open court, and a certificate of the same, are essential to the validity of the conveyance. (Ryan vs. Carr, 46 Mo., 485; Allen vs. King, 35 Mo., 225; Thornton vs. Miskimmon 48 Mo., 222.)

Botsford & Johnson, for Respondent.

I. A call, made at the door of the building in which the Circuit Court is being held, is at the proper place for an execution sale. (1 Wagn. Stat., 609, § 42,) It would not be valid if made at any other place. (Merr vs. Bell, 45 Mo., 333.) The building, in which the Circuit Court is held, is in contemplation of law the court house.

II. The mis-recital and omission in the deed to Kane were clerical errors and immaterial, as the other recitals sufficiently identified the judgment. (1 Wagn. Stat., 612, § 54; Tanner vs. Stine, 18 Mo., 580; Steward vs. Severance, 43 Mo., 322; Buchanan vs. Tracy, 45 Mo., 437; Bank of Whitehall vs. Pettis, 13 Vt., 395; Armstrong vs. McCoy, 8 Ohio, 128; Perkins vs. Dibble, 10 Ohio, 433; Jackson vs. Young, 5 Cowen, 269.) But these errors are corrected by the sheriff by leave of the court. (Thornton vs. Miskimmon, 48 Mo., 219.)

III. The clerk had the power to issue the orders of publication after the return term in the same manner as before. (2 Wagn Stat., 1008, § 13; Schell vs. Leland, 45 Mo., 289; Harris vs. Grodner, 42 Mo., 159; Moore vs. Stanley, 51 Mo., 317; Freeman vs. Robbins, 45 Mo., 315; 1 R. C., 1855, p. 245, § 23; Sess. Acts 1859-60, p. 4.)

And the finding of the court, that publication had been made according to law, cannot be disputed in a collateral proceeding. (Freeman vs. Thompson, 53 Mo., 183; Hardin vs. Lee 51 Mo., 241; Cooper vs. Reynolds, 10 Wall., 308; Voorhies vs. Bank U. S., 10 Pet., 449; Granger vs. Clark, 22 Maine, 128; Cook vs. Darling, 18 Pick., 393; Goudy vs. Hall, 30 Ill., 109; Thomson vs. Tolmie, 2 Pet., 169; Dingledine vs. Hershman, 53 Ill., 288; Elliot vs. Piersol, 1 Pet., 340; Peersley vs. Hays, 22 Iowa, 128.) But irregularity in, or even want of, an order of publication will not render the sale void. (Hardin vs. Lee, 51 Mo., 241; Freeman vs. Thompson, 53 Mo., 183; Cooper vs. Reynolds, 10 Wall., 308; Satcher vs. Satcher's Adm'r, 41 Ala., 26; Williamson vs. Leland, 2 Pet., 657; Grignon's Lessee vs. Astor, 2 How., 319; Beauregard vs. New Orleans, 18 How., 497; Paine vs. Moreland, 15 Ohio, 442; Robb vs. Irwin, 15 Ohio, 698; Shelton vs. Newton, 3 Ohio St., 494; Benson vs. Cilly, 8 Ohio, 614; Rover Judicial Sales, § 75; Covington vs. Ingram, 64 N. C., 123; Alexander vs. Nelson, 42 Ala., 462; Dequindre vs. Williams, 31 Ind., 444; Woods vs. Lee, 21 La. An. 505; Southern Bank vs. Humphires, 47 Ill., 227; Parker vs. Kane, 22 How., 14.)

IV. It was competent for the sheriff to execute the unreturned executions under which levies had been made by his predecessor in office, without making any further levy; and no venditioni exponas was necessary to enable him to do so. (Wood vs. Messerly, 46 Mo., 255; Boyd vs. Jones, 49 Mo., 202; Stewart vs. Severance, 43 Mo., 322; McDonald vs. Gronefeld, 45 Mo., 28; Duncan vs. Matney, 29 Mo., 368; Porter vs. Mariner, 50 Mo., 364.)

V. It is admitted that a sale under an execution, after the same is satisfied, is void. (Durette vs. Briggs, 47 Mo., 356.) But the return of the sheriff is no evidence that the land was sold in the order in which the sales are recited, either in the deeds or the return. (Jackson vs. Robert, 11 Wend., 422.) And it was the duty of the sheriff to apply the first bid upon the oldest execution. (Russell vs. Gibbs, 5 Con., 390; Rowe vs. Richardson, 5 Barb., 385; Camp vs. Chamberlain, 5 Den., 198; Barker vs. Gates, 1 How. Pr., 77.) A sale on several executions is not evaded by a defect in the judgments on which a part of them were issued. (Brace vs. Westervelt, E. D. Smith, 440; Herrick vs. Graves, 16 Wis., 157.) By the sheriff's sale and the execution and acknowledgment of a deed to Calhoun, and the delivery thereof to the recorder for record, the legal title passed to Calhoun; and the court in decreeing this title in Kane necessarily adjudicated upon the question of the delivery of the deed, and this adjudication is binding upon the defendants. (Bigelow on Estoppel, 75 and 286; Gorham vs. Brennon, 2 Den., 147; Logan vs. Moore, 1 Dana, 57; Adams vs. Barnes, 17 Mass., 365; Cooper's Lessee vs. Galbraith, 3 Wash. C. C., 550; Massey vs. Thompson, 2 N. & McCord, 105; McKnight vs. Gordon, 13 Rich. Eq., 222.)

NAPTON, Judge, delivered the opinion of the court.

This was an action of ejectment. The defendants are the widow and heirs of James McCown. The suit was originally against McCown, but, on his death, proceeded against his widow and children. It was revived against the widow, as administratrix, and against the minor children, who filed answers by their guardian ad litem.

The defendant, Caroline McCown, set up her dower rights, and her right to remain in the mansion house of her husband until dower was assigned. There was a replication to the answer, denying that McCown died seized of the premises, and also averring, that his mansion house and the messuage and plantation adjoining embraced only a portion of the land sued for.

The title of the plaintiff is based upon two deeds made by the sheriff under sales made under six special judgments in attachment and executions thereon. One of the deeds is directly to plaintiff; the other is to one Calhoun, and is accompanied with a decree of the Circuit Court of Johnson county, vesting the title of Calhoun in plaintiff. The deed to the plaintiff recited a judgment in a suit by attachment in favor of H. C. Grove, rendered April 21, 1864, upon which a special execution was ordered and was issued Sept. 4, 1865; and a judgment in a suit by attachment in favor of Sarah Colburn, rendered April 21, 1864, upon which a special execution was ordered and issued Sept. 4, 1865; and a judgment in attachment in favor of one Marr, rendered April 21, 1864, and an execution ordered and issued as in the other cases; and a judgment in favor of Calhoun of the same date and the execution dated as above.

These four executions, it is recited in the deed, were delivered to the sheriff on the 12th of Sept. 1865, and that, after advertising the land levied on, said lands were sold to plaintiff on Oct. 17, 1865, and that the sale took place before the court house door and while the Circuit Court was in session.

Objections were made to this deed on the ground, that the sale took place at the door of a church or meeting house in the town of Warrensburg where the Circuit Court was held, such building being then used as a court house, and the fact that the sale did so take place was proved.

It seems that the court house was occupied by Federal troops, and was otherwise unfitted for holding court, and the court was held in a building distant some hundred yards or more from the court house.

The second deed offered by plaintiff was to Calhoun. It recited a judgment in an attachment suit in favor of one St. John, rendered April 21, 1864, upon which an execution issued Sept. 15, 1864, and made returnable at the Oct. term, and, no Oct. term being held, the execution was delivered to the sheriff on Feb. 9, 1865; and a judgment in an attachment suit in favor of Colburn,...