McClurg v. Dollarhide

• Decision Date: 31 January 1873
• Citation: 51 Mo. 347
• Parties: Jos. W. MCCLURG, Defendant in Error v. WM. DOLLARHIDE, Plaintiff in Error.
• Court: Missouri Supreme Court

51 Mo. 347

Jos. W. MCCLURG, Defendant in Error

v.WM. DOLLARHIDE, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1873.

Error to Hickory Circuit Court.

F. P. Wright, for Plaintiff in Error.

I. The law is well settled that where, by a regular judgment and execution, the sheriff is invested with the power to sell, any irregularity in selling on a day different from that directed by law for selling, and even without the proper notice, does not affect the title of a bona fide purchaser. It is sufficient for the purchaser that the sheriff had authority to sell, and did sell, and executed a deed; all other questions are between the parties to the judgment and the officer. (Draper vs. Bryson, 17 Mo., 86; Lawrence vs. Speed, 2 Bibb., 401; Webber & Stith vs. Cox, 6 Monroe, 110; Hobein vs. Murphy, 20 Mo., 448; Newton vs. State Bank, 14 Ark., 115; Brooks vs. Rooney, 11 Georg., 423; Sullivan vs. Hearnden, Ib., 294.)

II. It is a principle of universal law, that every court of record has power to carry into effect its own judgments. It directs the execution to issue, and has the sole control over the same. Sessions of the County Court are held every three months, while those of the Circuit Court were then held only once in six months; and it might be difficult to procure a valid sale at the session of the Circuit Court. Hence for obvious reasons, it is important that the sale should take place at the court which has control of judgment, execution and sale, and unless the law clearly and expressly directs and requires the sale to be made at a session of the Circuit Court, and clearly prohibits such sale at the Couuty Court, a sale at the latter place is proper.

III. The reasoning of Judge Ewing, in the case of Blanchard vs. Baker, 29 Mo., 446, in which the regularity of a sale made by the Marshal at the Western Court of Common Pleas, was considered and decided, applies with all its force to this case, and is decisive in favor of the sale at the County Court.

The correctness of that decision has never been doubted.

The case of Mers. vs. Bell, is not in conflict with but rather sustains the above decision.

Young, McAfee & Phelps, for Defendant in Error.

I. The deed offered in evidence, shows that the proceeding under which the sale was made, was instituted under section 28 of Chap. 143, R. C. 1855. Under this section suits may be brought for the collection of interest and principal of such bonds, in any court of competent jurisdiction. The 29th section of said act provides that if the interest and principal of such bond does not exceed five hundred dollars, the same may be recovered in the County Court having charge of the fund.

II. The two last mentioned sections are the only sections in said act that authorize or provide for the collection of the interest and principal of the school fund, and neither of themauthorize or empower the sheriff to sell real estate at the sitting of the County Court; but provide that judgment may be rendered against the defendant with like effect as judgment of the Circuit Court in any civil action, which of course would require the sale to take place during the sitting of the Circuit Court.ADAMS, Judge, delivered the opinion of the court.

This was ejectment for land situated in Hickory County. Both parties claimed title under Alfred and W. D. Foster.

The plaintiff rested his case on a Sheriff's deed.

The defendant then offered a Sheriff's deed for the same premises, made under an execution issued from the County Court upon a judgment of the County Court, given for the principal and interest of a School debt under the statute of 1855, which was excluded because the sale appeared to have been made at the County Court and in vacation of the Circuit Court. The exclusion of this deed is the only point raised by this record.

Whilst it...