Owen v. Baker

• Decision Date: 16 June 1890
• Citation: 101 Mo. 407,14 S.W. 175
• Parties: OWEN v. BAKER.
• Court: Missouri Supreme Court

14 S.W. 175

101 Mo. 407

OWEN v. BAKER.

Supreme Court of Missouri.

June 16, 1890.

SHERIFF'S DEED — COLLATERAL ATTACK — ACKNOWLEDGMENT.

1. A sheriff's deed cannot be attacked in a collateral proceeding because it recites a judgment against three defendants, and a direction to levy against one only, where the levy was made on the land of such defendant, and the land sold accordingly.

2. Rev. St. Mo. 1835, (2d Ed.) 1840, p. 339, § 3, provided that the lien of a judgment should begin when the judgment was rendered. Page 256, § 17, provided that on execution might be sold the real estate whereof the defendant or any one for his use was seised in law or equity on the day of the rendition of the judgment, or at any time thereafter. Held that, where a sheriff's deed recited a levy on a judgment debtor's lands, and purported to convey them, the interest passed was that of the debtor at the time of the judgment, though the deed recited that the interest conveyed was that of a subsequent date.

3. By Rev. St. Mo. 1835, (2d Ed.) p. 525, § 2, the clerk of the circuit court was ex officio recorder of deeds. Page 120, § 8, authorized the clerk, as clerk, but not as recorder, to take acknowledgments. A certificate of acknowledgment signed by J., "Recorder," recited that "I have hereunto set my hand, and the seal of said court," in testimony that there "appeared in open court," B, "who is personally known to the court," etc. Held, that the acknowledgment would be considered to have been taken before him as clerk; the word "recorder" being treated as mere description.

4. Reference may be had to the language of a conveyance in support of a certificate of acknowledgment.

Error to circuit court, Bates county; D. A. DE ARMOND, Judge.

This is an action of ejectment for a tract of land in Bates county. The petition is in usual form; the answer, a general denial. It was mutually conceded that defendant was in possession at the beginning of this action, and James Sullivan the common source of title. After evidence of the rental value of the land, plaintiff offered a sheriff's deed, which the court excluded. This led to plaintiff's taking a non-suit with leave. Thereupon, plaintiff sued out this writ of error, after the proper motions for review had been disposed of, and exceptions saved, in the circuit court. The sufficiency of the conveyance mentioned is the only question presented. It reads as follows:

"This indenture, made and entered into this twenty-first day of November, eighteen hundred and forty-two, between William P. Burney, sheriff of Van Buren county, in the state of Missouri, of the first part, and William R. Owen, of the county of Henry and state of Missouri, of the other part, witnesseth: That whereas, on the 7th day of October, 1842, a certain writ of execution did issue formally out of the circuit court of Van Buren county, in the state of Missouri, to the sheriff of Van Buren county directed, reciting that, whereas, on the 22d day of March, in the year of our Lord 1842, at our Van Buren circuit court, William R. Owen hath recovered against James Sullivan, William Sullivan, and Mason Sullivan the sum of twenty-five dollars and forty-seven cents for his debts, and also for his costs, the sheriff was therefore commanded that, of the goods and chattels and real estate of the said defendants, he cause to be made the debt and cost aforesaid, and that he certify how he executed the said writ. And whereas, the said sheriff, on the tenth day of October, eighteen hundred and forty-two, in pursuance of the command therein contained, the said sheriff levied the same upon the lands of James Sullivan and of the said defendants lying and being in the county of Van Buren, to wit, the south-west quarter of the south-east quarter of section twenty-three, township forty-one, range twenty-nine. And whereas, the said sheriff did afterwards proceed to give at least twenty days' notice, by six hand-bills, put in public places in different parts of the county of Van Buren, containing a description of the lands to be sold, and the time and place of the sale. And whereas, in pursuance of said notice, the said sheriff did, on the first day of the November term of Van Buren circuit court, 1842, between the hours of nine o'clock in the forenoon and five o'clock in the afternoon, offer for sale by public auction, for ready money, at the court-house door in the town of Harrisonville, in Van Buren county, the said land of the said James Sullivan, one of said defendants, to the highest bidder. And whereas, one William R. Owen became the purchaser for the sum of thirty-five dollars, it being the highest and best sum bid for the same: Now, therefore, I, the said William P. Burney, sheriff of Van Buren county aforesaid, for and in consideration of the sum of thirty-five dollars to me in hand paid, the receipt whereof is hereby acknowledged, do hereby, and by these presents, convey unto the said William R. Owen the lands aforesaid, and all the right, title, and interest which the said James Sullivan had in and to said land on the 21st day of November, 1842, to have and to hold the land aforesaid, unto him, the aforesaid William R. Owen, and his heirs and assigns, forever, in as full and absolute a manner as I, the said William P. Burney, sheriff of Van Buren county aforesaid, could or ought to do. In testimony whereof, I, the said William P. Burney, sheriff of Van Buren county, as aforesaid, have hereunto set my hand and seal the day and year aforesaid. WILLIAM P. BURNEY, Sheriff of Van Buren County. [Seal.]"

"State of Missouri, county of Van Buren — ss.: Be it remembered that on the seventh day of October, in the year of our Lord 1843, personally appeared in open court,...