Langford v. Few

• Decision Date: 15 November 1898
• Citation: 47 S.W. 927,146 Mo. 142
• Parties: Langford, Appellant, v. Few
• Court: Missouri Supreme Court

47 S.W. 927

146 Mo. 142

Langford, Appellant, v. Few

Supreme Court of Missouri, First Division

November 15, 1898

Appeal from Ripley Circuit Court -- Hon. John G. Wear, Judge.

Affirmed.

J. L Fort and C. L. Keaton for appellant.

(1) The execution offered in evidence, and the return of the constable thereon, with the other proceedings of the constable under said execution, is sufficient to show that the respondent had no property subject to said execution; and the return thereon is, in fact, a return of nulla bona in this proceeding. R. S. 1889, secs. 4907, 6286-7; Bacon v Beven, 44 Miss. 293; State ex rel. v. Brady, 53 Mo.App. 202; Hale v. Talbott, 86 Ind. 447; State v. Still, 11 Mo.App. 283. (2) Irregularities in the judgment and execution under which the land was sold can not affect the title of the appellant, who is a stranger to those proceedings, and had no notice of irregularities, if any existed, at the time of his purchase. Whitman v Taylor, 60 Mo. 127; Sachse v. Clingingsmith, 97 Mo. 406; Brown v. Walker, 11 Mo.App. 226; Leonard v. Sparks, 117 Mo. 103. The sheriff's deed was sufficient on its face, and the facts aliunde the deed support, instead of impeach, its recitals. Huhn v. Lang, 122 Mo. loc. cit. 606.

J. C. Sheppard and W. W. Perkins for respondent.

(1) This sheriff's deed no where recites the fact that an execution was ever issued by the justice of the peace, or delivered to the constable, or that he ever made a nulla bona return thereon, which were necessary prerequisites to the issuance of an execution from the circuit clerk's office. Burke v. Miller, 46 Mo. 258. (2) It was necessary that the transcript execution should not only have issued, but should have been returned by the constable nulla bona, in order to pass the title to the lands in the sheriff's deed. (3) The return of the constable does not amount to a nulla bona return. He must recite the acts done by him, so that the court may determine whether the return is sufficient. R. S. 1889, sec. 6287; Burke v. Miller, 46 Mo. 258; 7 Am. and Eng. Ency. of Law, 155; Burke v. Flurnoy, 4 Mo. 116; Conce v. Munday, 3 Mo. 373. The contention of appellant that he was a stranger to the proceedings in the justice's court, and that he can not be affected by any irregularities in such proceedings, this being a collateral proceeding, is not tenable, for the reason that the question in this case is the direct question as to whether there was or was not a nulla bona return, a fact upon which his title, under the law, stands or falls. Jordan v. Surghnor, 107 Mo. 520.

OPINION

Marshall, J.

Action in ejectment to recover the south half of the northwest quarter of section 8, township 24, range 1, East, in Ripley county. The answer is a general denial and plea of homestead rights. The reply is a general denial. Plaintiff's evidence is: 1st, a deed from the sheriff of Ripley county, dated October 18, 1893, recorded March 2, 1894, reciting that on November 7, 1892, Wm. P. Morrison recovered a judgment against defendant before a justice of the peace in said county; that a transcript of the judgment was filed in the circuit clerk's office on the 13th of December, 1892, and upon which an execution was issued on March 18, 1893, directed to the sheriff of Ripley county, and under which he levied on the land in controversy, and sold it to plaintiff for twenty-five dollars; 2d, a transcript of the judgment of the justice of the peace in favor of Morrison and against Few. Attached to and forming a part of the transcript is a recital that an execution was issued on the 13th of December, 1892, and a further statement signed by the justice of the peace, as follows: "March 13, 1893, execution returned, not satisfied, with a schedule of defendant's property, to the amount of two hundred and twenty three and 87-100 dollars." It was agreed that the monthly rents and profits is four dollars per month.

The defendant's evidence is: 1st, a deed from Mrs. M. J. Morrison and seven others, without date, but acknowledged October 2, 1886, and recorded June 24, 1889, conveying an undivided ten-elevenths interest in the north half of the northwest quarter and all of the south half of the northwest quarter that lies north of Big Barren Creek, in Sec. 28, T. 25, N., R. 1, E., to defendant, in consideration of three hundred and ninety-five dollars, in trade, and one hundred and fifty and 45-100 dollars; 2d, the testimony of defendant that he took possession of the land in January 1888, but did not have the deed recorded until he came to Ripley county; that he stayed on the place two years; made one crop, then moved off, returned in the fall and the next spring sold it to J. W. Shipp on the 9th of April, 1890; that W. P. Morrison exhibited the sheriff's deed to him but he did not examine it; that he sold the place for some stock, traded the stock and with the proceeds, and money he borrowed from the county, he paid for the land. In rebuttal, plaintiff introduced the deed from Few to Shipp, the deed is not set out in the record, but it is there stated to be a warranty deed, recorded, but where or when is not shown. Plaintiff then offered the complete transcript of the justice of the peace in the case of Morrison v. Few, including the execution and return of the constable. The return is the material part and is as follows: "Executed the within writ in the county of Ripley, state of Missouri, on the 23d day of December, 1892, by reading to W. L. Few, and scheduled the property of defendant. Execution returned not satisfied. P. E. Whitwell, Const.," with the following added: "Copy of oath of Appraisers. F. W. Bell, W. D. Raywinkle and J. T. Hutson, Sr., appraisers, being duly summoned to appraise the property of W. L. Few, before entering upon their duties, make oath and say they will faithfully and impartially appraise the property exhibited to them by the said Few." (Signatures, and seals, and oaths attached), to which is also underwritten the following: "Copy of the Schedule. January 21, 1893. State of Missouri, County of Ripley. To the Justice Court of Kelley township, of J. W. Hufstedler, J. P.: W. L. Few sets forth upon oath the following described property to the amount of three hundred dollars worth as scheduled, to wit:" (Here follows an itemized list of personal property with the values set opposite each item, and aggregating $ 239.40, but there is no signature or jurat of any one attached to it). Defendant objected and the court excluded the transcript. Plaintiff then offered again the transcript on file in the circuit clerk's office and also the note upon which the judgment of the justice of the peace was based.

The plaintiff asked and the court refused to give the following instructions:

"1. The court declares the law to be, that if the court finds from the evidence and admissions of the parties that the defendant is the common source of title and that the plaintiff has acquired the title of defendant by a sheriff's deed of and for the said lands, then the court should find for the plaintiff and assess his damages and value of the monthly rents and profits as shown by the evidence, unless the court should find from the evidence that the land in controversy was the homestead of the defendant at the time of the sale thereof under the execution and judgment shown in evidence.

"2. The court further declares the law to be that the sheriff's deed offered in evidence and the transcript of and from the justice upon which the same is based, offered in evidence, can not be impeached or invalidated in this collateral proceeding of ejectment for any mere irregularity or seeming informality therein contained."

The court of its own motion gave the following instructions:

"1. The court, sitting as a jury, declares the law to be, that if it appears from the evidence that defendant was, at the time of the institution of the suit before J. W. Hufstedler, the justice of the peace, a citizen and resident of Ripley county, and has been a resident of the county ever since and was at the time of the filing of the transcript of said justice's docket in the office of the clerk of the circuit court of Ripley county, and at the time of suing out of the said clerk's office the execution under which the sale was made at which the plaintiff became the purchaser of the land of defendant, and there had not been an execution issued by the justice directed to some constable, and a return by such constable of such execution that the defendant had no goods or chattels whereof to levy the same, then in that case the finding and verdict should be for the defendant.

"2. The court further declares the law to be that unless the court find from the evidence that the former homestead claimed by the defendant was acquired by the filing of the deed of conveyance thereto in the clerk's or recorder's office for record and entering into the possession thereof as such homestead by the defendant before he contracted the debt mentioned in the transcript execution and deed of plaintiff, although the court may find the land in controversy claimed as a homestead was acquired with the proceeds of the sale of the first mentioned land claimed as his homestead, and unless the court finds both such facts from the evidence, the court will find for the plaintiff, unless the court should further find from the evidence that plaintiff did not acquire the title under the sheriff's deed."

There was judgment for defendant and plaintiff appealed.

I.

It thus appears very vaguely that defendant owned an undivided ten-elevenths of the north half of the northwest quarter and all of the south half of the northwest quarter that lies north of Big Barren creek, in section 28, township 25, north range one, east, and that about 1890 he sold...