Neil v. Tubb

• Decision Date: 29 March 1912
• Parties: NEIL v. TUBB et al.
• Court: Missouri Supreme Court

145 S.W. 766

NEIL v. TUBB et al.

Supreme Court of Missouri, Division No. 1.

March 29, 1912.

1. JUDGMENT (§ 273)—NUNC PRO TUNC ORDER.

Where a court at a former term has rendered judgment which should have been entered on record, but was not, the judgment may be entered at a subsequent term nunc pro tunc, provided the court has sufficient memorandum of its own to show that the judgment had actually been made at the prior term.

2. SCHOOLS AND SCHOOL DISTRICTS (§ 18)— SCHOOL FUND MORTGAGE — FORECLOSURE — NUNC PRO TUNC ORDER.

A mortgage securing a loan of school funds was foreclosed by the sheriff making the sale without the statutory order of the county court, but merely acting on a certificate of the clerk of the county court. Nearly two years later, after litigation had begun, the county court made the statutory order, and a certified copy thereof was delivered to the sheriff, who went through the form of making a sale thereunder to the former purchaser. Held, that the order of the county court was not a nunc pro tunc order, and did not render valid the original sale.

3. SCHOOLS AND SCHOOL DISTRICTS (§ 18)— SCHOOL FUNDS—LOANS—MORTGAGES—FORECLOSURE.

Under Rev. St. 1899, § 9835, requiring the county court, on default of a mortgage securing a loan of school funds, to make an order reciting the amount of the debt and interest, and commanding the sheriff to levy on the mortgaged property, etc., a foreclosure sale by the sheriff, made without order of the county court, is void, though the clerk delivered an order to the sheriff, directing a sale, and reciting that the county court had made an order of sale, and though the county court approved the sale made and reported by the sheriff.

4. EJECTMENT (§ 9)—EVIDENCE—COLLATERAL ATTACK ON SHERIFF'S DEED ON FORECLOSURE OF MORTGAGE.

A defendant who pleads the general denial, and who, when plaintiff offers proof of title, based on the deed of a sheriff foreclosing a mortgage securing a loan of the school fund, objects to the deed for infirmities apparent on its face, disclosing the failure of the county court to make the statutory order of sale, does not collaterally attack the sheriff's deed, but shows want of title in plaintiff.

5. EJECTMENT (§ 9)—TITLE OF PLAINTIFF— EVIDENCE.

A plaintiff in ejectment must make legal proof of title to recover.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Mary A. Neil against Jane I. Tubb and another. From a judgment for plaintiff, defendants appeal. Reversed.

E. R. Lentz, for appellants. Phillips & Phillips, for respondent.

VALLIANT, J.

Plaintiff sues in ejectment for possession of S. ½ lot 1 and E. ½ S. ½ lot 2, N. W. ¼, section 31, township 25 N., range 6 E., containing 62 acres, in Butler county.

The answer of defendant was a general denial.

There is no dispute as to facts; but the dispute is as to the legal meaning and effect of certain documents in evidence. Louise Sutton is the common source of title. September 21, 1900, she borrowed $500 of the school fund of Butler county, and for its payment she and her husband executed a bond, with personal security of that date, for that amount to Butler county, and on the same date executed a mortgage on the land in suit in conformity with the statute in such case made and provided to secure the loan. The mortgage was duly recorded. April 25, 1901, Mrs. Sutton and her husband conveyed the land, by warranty deed, to the defendant Jane L. Tubb, subject, however, to that mortgage. That is defendants' claim of title.

Plaintiff introduced evidence which, she claims, tends to show that the mortgage was duly foreclosed, sold by the sheriff under foreclosure sale, August 10, 1905, to Mary Baird, sale reported to the county court and confirmed; that afterwards Mary Baird, by warranty deed, conveyed the land to one Welborn, and he, by like deed, to the plaintiff. That is the plaintiff's claim of title.

The decision of the case turns on the point of whether the mortgage was legally foreclosed; the trial court held that it was, and gave judgment for the plaintiff. The defendant appealed.

Let us first see what the statute requires, and then see if the plaintiff's proof meets the requirements. Section 9824, R. S. 1899, makes it the duty of the county court to cause the school funds of the county to be invested at interest on mortgages of land in the county double in value to the loan. Section 9827 makes it the duty of the county court to see to the collection of the moneys so loaned, and, when paid, the clerk is required to indorse the same on the bond and cause satisfaction of the mortgage to be entered on the record. Sections 9832 and 9833 make further provisions in reference to the mortgage to be taken to secure the loan. Section 9833 provides that the mortgage shall "recite the bond and shall contain a condition that if default shall be made in payment of principal or interest, or any part thereof * * * the sheriff of the county may, upon giving twenty days notice of the time and place of sale * * * without suit on the mortgage proceed to sell the mortgaged premises * * * which shall be as effectual to all intents and purposes as if such sale and conveyance were made by virtue of a court of competent jurisdiction foreclosing the mortgage." Section 9835 is as follows: "Whenever the principal and interest, or any part thereof, secured by mortgage containing a power to sell shall become due and payable, the county court may make an order to the sheriff, reciting the debt and interest to be received, and commanding him to levy the same with costs, upon the property conveyed by said mortgage, which shall be described as in the mortgage; and a copy of such order, duly certified, being delivered to the sheriff, shall have the effect of a fieri facias on a judgment of foreclosure by the circuit court, and shall be proceeded with accordingly."

We have quoted from the Revised Statutes of 1899, because the rights of the parties in question arose prior to the Revision of 1909; but the statutes are the same now as they were then. Sections 10,817 and 10,819, R. S. 1909.

Under section 9833, it is required that the mortgage contain an authorization to the sheriff, on condition broken, to proceed to advertise and sell to foreclose without suit; while section 9835 requires the county court, on default of payment, to make an order reciting the amount of debt, principal and interest, and commanding the sheriff to levy the same, with costs, on the mortgaged property, describing it; and that a copy of the order, duly certified, be delivered to the sheriff, and have the effect of a fieri facias as on a judgment of foreclosure in the circuit court. This court has held that those two sections are to be construed together; that if the sheriff should undertake to sell without a duly certified copy of the order of the county court, delivered to him in accordance with section 9835, his act would be null and void. Benton County v. Morgan, 163 Mo. 661, 64 S. W. 119. In that case, the county court had made the order required by the statute; but a certified copy of it had not been delivered to the sheriff, and for that reason it was held that his deed was void.

In the case at bar, there was no evidence that the county court ever made such an order in reference to this mortgage as required by the statute. On the contrary, the evidence showed that a careful search by a competent person, familiar with the records of the court, had been made, and no such order could be found in the records. We do not understand the plaintiff as claiming that there is such a record. There was not delivered to the sheriff what purported to be a certified copy of such order. The plaintiff's evidence on that point was a certificate of the clerk of the county court, dated June 6, 1905, reciting the mortgage and its contents, and saying that, whereas, the county court, on the 8th day of May, 1905, did find the amount of principal and interest due on the bond, and did then and there direct that judgment therefor should be entered against the principal and sureties on the bond, and that an order of sale of the property described in the mortgage should issue; then the clerk in his certificate proceeds to order the...