Mitchell v. Nodaway Cnty.

• Decision Date: 31 October 1883
• Citation: 80 Mo. 257
• Parties: MITCHELL et al., Appellants, v. NODAWAY COUNTY et al.
• Court: Missouri Supreme Court

80 Mo. 257

MITCHELL et al., Appellants,

v.NODAWAY COUNTY et al.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Nodaway Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

William Heren for appellants.

Nodaway county had not the right to sell the lands of appellants and make title thereto during the progress of the civil war, when appellants were residents within the confederate lines before and all the time during the war. De Jarnette v. De Giverville, 56 Mo. 451, dissenting opinion of Judge Napton; McMerty v. Morrison, 62 Mo. 140; Douthitt v. Stinson, 63 Mo. 268; Martin v. Paxson, 66 Mo. 260. The sale was without notice and was void. Herman on Ex., p. 345; Olcott v. Robinson, 21 N. Y. 150; 20 Barb. 148. He who buys under a power, buys at his peril, and acquires no title unless he can show a valid, subsisting power. Herman on Ex., 419, § 255; 18 John. 441; 36 Mo. 521; 37 Mo. 365. The proceedings being in derogation of common right, nothing can be presumed in their favor, but every requirement of the law must be complied with. 9 Mo. 882; 4 Pet. 349; 19 John. 7; 4 Hill 76, 92. Nodaway county had no right to buy the land. Ray Co. v. Bently, 49 Mo. 236; Holt Co. v. Harmon, 59 Mo. 165. Appellants brought this suit within ten years, the time required by the statute of limitations. Kelly v. Hurt, 61 Mo. 463; Rogers v. Brown, 61 Mo. 187.

Johnston & Jackson and Dawson & Anthony for respondents.

The mortgaged lands were within the jurisdiction of the court, and the right to make the order of sale was not suspended during the late war because the mortgageors were residents of Tennessee. University v. Finch, 18 Wall. 106; De Jarnette v. De Giverville, 56 Mo. 440; Black v. Gregg, 58 Mo. 566. The county court had jurisdiction and no notice was necessary. Hurt v. Kelly, 43 Mo. 238; Seymour v. Bailey, 66 Ill 288, 297. The mortgage might have been foreclosed any time after January 1st, 1860. This suit was not commenced until eight years and eight months after the sale, and the claim was too stale. Moreman v. Talbott, 55 Mo. 392; Stevenson v. Saline Co., 65 Mo. 425; Carpenter v. Carpenter, 70 Ill. 457; McQuiddy v. Ware, 20 Wall. 14. The land being “swamp or overflowed lands,” the county had a right to purchase them. Linville v. Bohanan, 60 Mo. 554; Stevenson v. Saline Co., 65 Mo. 425. The sale certainly becomes absolute in the hands of a second party--a bona fide purchaser. Thornton v. Irwin, 43 Mo. 153; Landrum v. Bank, 63 Mo. 48; Vogler v. Montgomery, 54 Mo. 577. The failure of the sheriff to advertise does not vitiate the sale. Curd v. Lackland, 49 Mo. 451; Bryson v. Draper, 17 Mo. 83. The sheriff could make a new deed properly describing the lands, if in accordance with the facts. Ware v. Johnson, 55 Mo. 500; Porter v. Mariner, 50 Mo. 364.

RAY, J.

This is a proceeding in the nature of a bill in equity, to set aside a sale of certain “swamp and overflowed lands” in Nodaway county, Missouri, made by the sheriff of that county under a common statutory school mortgage with power of sale on default, and the order of the county court thereon, as provided by sections 22 and 30 of article 2, chapter 143, Revision of 1855, pages 1424, 1425; and also to cancel the sheriff's deed for said lands made to said county at said sale; and also to cancel certain other deeds for said lands thereafter made by said county to various other parties, and allow the plaintiffs to redeem said lands by the payment of the mortgage debt and interest, for which purpose the plaintiffs bring into court and tender the money so due and owing. The grounds of relief charged in the petition and insisted on here, are: 1st, That the sale of said lands, the order of the court and all other proceedings touching the foreclosure of said mortgage were unlawful, null and void, for the reason that they all occurred during the late civil war between the United States, including the State of Missouri and said Nodaway county, on the one side, and the so-called confederate states, including the state of Tennessee and the county of Jefferson, on the other, and while the plaintiffs were citizens and residents in the latter state and county and within the confederate lines. That by the laws of war, the act of congress and the proclamation of the President touching the same, all commercial intercourse and business transactions of whatever kind between individual citizens of said belligerents were suspended, forbidden and made unlawful; and that all remedies and proceedings, judicial or otherwise, for the collection of debts between the inhabitants of Jefferson county, Tennessee, and Nodaway county, Missouri, and between said Nodaway county and these plaintiffs, were by the rules of war and laws of nations also suspended and rendered unlawful, null and void. 2nd, That the advertisement for the sale of said lands under said mortgage was for the 3rd day of March, 1864, while the sale took place on the 3rd day of May, 1864, without any other or further notice thereof. 3rd, That Nodaway county had no right or power to become a purchaser of said lands at said sale.

The answers of defendants substantially took issue on all these allegations of the petition, claiming that said sales, proceedings and conveyances were all legal and valid; that the advertisement as well as the sale was for the 3rd day of May, and that said Nodaway county had the right and power to become the purchaser of said lands at said sheriff's sale. The answers further charge that the purchase of said lands by Nodaway county was for a valuable consideration and fairly made, and that all its subsequent sales of said lands to the various purchasers and holders thereof were for a valuable consideration, in good faith, and without any notice on the part of said purchasers of any irregularity in the sale and foreclosure of said mortgage, if any there was; that most of said purchasers had taken possession and made valuable and lasting improvements thereon, long before the plaintiffs commenced this suit, and that plaintiffs, if they ever had any rights or equities in the premises, have slept thereon, and by their laches are now estopped from setting up the same as against said subsequent purchasers and holders of said lands.

The material facts as shown by the record, are substantially: That the lands in question are situated in Nodaway county, Missouri, and were what is known as “swamp and overflowed lands” belonging to said county under certain grants from the general government and the State of Missouri, for the purpose therein declared. That plaintiffs bought them from said county and gave the county their note or bond for the purchase money, due and payable the 1st day of January, 1860, and received from said county a deed therefor, and at the same time executed to said county the statutory mortgage in question, with power of sale therein on default, to secure the payment thereof. The record further shows that default was made in the payment of said purchase money at the maturity thereof, and that thereafter the order in question for the sale of said lands under the power in said mortgage, together with the sale itself, as well as the sheriff's deed therefor to said county, were all made during the existence of said civil war and while the plaintiffs were citizens and residents within the confederate lines. That after the close of the war the plaintiffs came to Nodaway county, Missouri, first in 1865 and again 1868 or 1869, and learned and were advised of all the acts and doings of which they now complain, but took no steps to assert their alleged rights and equities until the institution of this suit in January, 1873. It further appears that the sheriff's deed to Nodaway county for said lands recites, among other things, in substance, that an order was made for the foreclosure of said mortgage and a writ in the nature of a fieri facias was duly issued thereon and delivered to said sheriff on the 4th day of April, 1864, by virtue of which said sheriff on the 7th day of April, 1864, levied on said lands, and having previous to the day of sale thereafter mentioned, given at least twenty days notice of the time and place of sale by advertisement, by virtue of which said execution and notice said sheriff, on the 3rd day of May, 1864, agreeable to said notice, did sell said lands for cash in hand, when and where Nodaway county became and was the purchaser thereof at and for $1,000, etc.

To impeach this deed and contradict the same, as to the time at which said lands were advertised for sale, the plaintiffs after having themselves introduced said sheriff's deed as evidence, also offered and read in evidence what purported to be a...