McDonald v. Gronefeld

• Decision Date: 31 October 1869
• Citation: 45 Mo. 28
• Parties: DENNIS MCDONALD and FRANCES V. MCDONALD, Respondents, v. FREDERICK GRONEFELD, Appellant.
• Court: Missouri Supreme Court

45 Mo. 28

DENNIS MCDONALD and FRANCES V. MCDONALD, Respondents,

v.FREDERICK GRONEFELD, Appellant.

Supreme Court of Missouri.

October Term, 1869.

Appeal from Sixth District Court.

Lewis & Bruere, for appellant.

Orrick & Emmons, and Lackland, for respondents, cited Bank of the State of Missouri v. Bray et al., 37 Mo. 194; Newman v. Hook, 37 Mo. 207; Turner v. Kellar, 38 Mo. 332; Lackey v. Lubke, 36 Mo. 115; Merchants' Bank of St. Louis v. Garrison, 39 Mo. 433-4; Swift's Dig. 795; Gantly v. Ewing, Curtis' U. S. 608 et seq.; Williams v. Amory, 14 Mass 28-9; L chfield v. Cudwell, 15 Pick. 27-8; Breese v. Bange, 2 E. D. Smith, 474; Russell v. Dyer, 40 N. H. 173; McElwee v. Sutton, 2 Bailey, 361.

CURRIER, Judge, delivered the opinion of the court.

This is an ejectment. The plaintiff Frances V. McDonald, the wife of the other plaintiff, deduces her title through George G. Johnson, who purchased the premises in suit at sheriff's sale, on execution against the plaintiff Dennis McDonald. The defendant deduces title through Benj. H. Payne, who also purchased the same premises at sheriff's sale, on executions against the same party. Dennis McDonald is, therefore, the common source of title. Deeds were duly executed in pursuance of these respective sales; the sale and conveyance to Payne being prior to the sale and conveyance to Johnson. It is conceded that if the deed to Payne is valid, the defendant has the title; but if this deed is invalid, then the title is conceded to be in McDonald.

The validity or invalidity of that instrument depends upon a solution of the question whether or not the executions under which the premises were sold to Payne were, at the time of the levy of them upon the particular property in dispute, in life and of force for the purposes of that levy, and the subsequent sale pursuant thereto.

These executions were issued in February, 1863, and were made returnable at the next succeeding term of the St. Charles Circuit Court, which was held in March of that year. Prior to the return day, they were levied upon several tracts of land of the defendant therein (Dennis McDonald), but not upon the tract suit. The land thus levied upon was advertised for sale at the March term of the St. Charles Circuit Court, but the sale was postponed by agreement of parties. In August of the same year the property was readvertised for sale at the then next succeding term of the court, and this advertisement contained a description of the property sued for in this action, which on the day of sale, was sold and bid in by Payne, as already suggested. The executions in question, as respects the land in suit, had expired by their own limitation, and became functus officio, long prior to their levying upon that particular parcel of land, unless they were kept alive and continued in force by the operation of the act of March 23, 1863. (See Acts 1863, p. 20, § 2.) There is no contest over this proposition. (Bank of Missouri v. Bray, 37 Mo. 194.) The determination of the question presented depends, therefore, upon the construction to be given to that enactment. The second section is relied on. It provides that “executions now issued, or that may be hereafter issued from any court of record, and levied upon real estate, if from any cause the real estate shall not be sold at the next term of the court from which said execution has been issued, or may hereafter be issued, said execution and the lien of said levy shall remain and continue in full force until a term of court is held in the county where said property may or can be sold.”

The historical fact and circumstances which induced this legislation were the same as those which occasioned the act of March 17, 1863 (Sess. Acts 1863, p. 24, § 1), extending the lien of a judgment from three to five years. These acts wese passed within five days of each other, and arose out of a disturbed and abnormal condition of society. Property was depressed and courts were, in various localities, broken up. Sales could not be effected because the courts were closed. Therefore...