McKnight v. Wimer

• Decision Date: 31 March 1866
• Citation: 38 Mo. 132
• Parties: JOHN MCKNIGHT, Appellant, v. ABIGAIL S. WIMER, Respondent.
• Court: Missouri Supreme Court

38 Mo. 132

JOHN MCKNIGHT, Appellant,

v.ABIGAIL S. WIMER, Respondent.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Land Court.

Lackland, Cline & Jamieson, for appellant.

The court below erred in deciding that no title passed to the appellant.

I. Because there was express power given in the deed of trust to the sheriff to advertise, sell, and convey.

II. Admitting for argument sake that there was no title in the sheriff, still, as the power was given to sell and convey, he could do it and pass the title. A sheriff, under execution, can sell and convey real estate, although there is no title in him; also, an administrator can sell and convey real estate under an order of the probate court; also an executor, under a will, without any order of court; also an agent, under a power of attorney.

III. The legal effect of the deed of trust operated to pass the legal title to the sheriff, in the absence of the trustee, and enable the sheriff to advertise, sell and convey.

Glover & Shepley, for respondent.

I. The deed of Sheriff Vogel passed no title to McKnight, because there is no principal of law or equity known, by which, in such a case, the sheriff was authorized to transfer the title. By the deed the estate was vested in McClellan, and the power to sell was conferred on McClellan. This power, being coupled with an interest in the property, could be exercised in accordance with long established principles of law. But the attempt to convey power in the manner used in the deed, is anomalous in practice, and has no ground of support in the law.

The sheriff has no title, therefore he cannot convey as owner: he is not an agent, and as such cannot convey: he is not the agent of the grantors, for they could not control him: he is not the agent of McClellan, for McClellen does not appoint him. If the sheriff be an agent, then he must convey in the name of his principal. But he has pretended to convey in his own name, and not in the name of any principal; so that the sheriff is neither agent nor trustee in this conveyance.

II. But he has not conveyed the property at all, nor the right of the Wimers, or of McClellan. He has conveyed simply the property, right and title, vested in him, that he could as sheriff convey. The deed of Vogel, therefore, is inoperative--35 Mo. 45.

WAGNER, Judge, delivered the opinion of the court.

This was an action of ejectment brought in the Land Court for the possession of a lot in the city of St. Louis. Plaintiff claimed title by virtue of a deed from the sheriff of St. Louis county, who sold the premises under a deed of trust.

The record shows that on the 26th day of September, 1860, E. H. Shepard, trustee of Abigail S. Wimer, and John M. Wimer and Abigail his wife, executed to Josiah G. McClellan, as trustee, their certain deed of conveyance, conveying the lot in controversy for the purpose of securing the payment of certain promissory notes therein specified. It was provided in the deed, that if the notes, or either of them, were not paid when they became due, then the trustee (McClellan), “or in the event of his absence from the city of St. Louis, sickness, death, or other disability, or refusal to act, then the acting sheriff, for the time being, of the county of St. Louis, upon request of the legal holder of said notes, or either of them, may proceed to sell the property hereinbefore described, or any part thereof, at public vendue, to the highest bidder, at the east front of the St. Louis county court-house, in the city of St. Louis, Missouri, for cash, first giving twenty days' public notice of the time, terms and place of said sale, and of the property to be sold, by advertisement in some newspaper printed and published in the city of St. Louis; and upon such sale, shall execute and deliver a deed in fee simple of the property sold to the purchaser or purchasers thereof.”

McClellan was out of the State, and the legal holder of the notes requested John C. Vogel, the sheriff of St. Louis county, to proceed to sell the property in accordance with the power contained in the deed of trust.

At the sale the plaintiff became the purchaser of the premises, and the sheriff executed and delivered to him a deed, of which the following is the granting clause; “Now, therefore, know all men by these presents, that I, John C. Vogel, sheriff and trustee as aforesaid, in consideration of the premises and of the sum of seven thousand seven hundred dollars and____cents, to me cash in hand paid by the said John McKnight, the receipt whereof I do hereby acknowledge; and by virtue of the authority in me vested by said deed and appointment, I do hereby assign, transfer and convey to him, the said John McKnight, all the right, title and interest in me vested by said deed and appointment, that I may or can sell and convey as sheriff and trustee as aforesaid, by virtue of said deed, appointment and advertisement, of, in and to the said real estate as above herein described.”

The plaintiff requested the court to declare the law to be, that if Wimer and wife and Shepard executed the deed of trust read in evidence, and if the said Vogel was sheriff of St. Louis county at the time of the sale and the execution of the deed, and if Josiah G. McClellan was absent from...