Porter v. Mariner

• Decision Date: 31 July 1872
• Citation: 50 Mo. 364
• Parties: RICHARD H. PORTER, Respondent, v. E. J. MARINER, Appellant.
• Court: Missouri Supreme Court

50 Mo. 364

RICHARD H. PORTER, Respondent,

v.E. J. MARINER, Appellant.

Supreme Court of Missouri.

July Term, 1872.

Appeal from Jackson Circuit Court.

A. Comingo, for appellant.

The fact that the sheriff had not made the levy, in no manner abridged his power to execute a deed after the expiration of his term of office. (See Hunter v. Miller et al., 36 Mo. 147; Duncan v. Matney, 29 Mo. 375)H. B. Johnson and Jas. S. Botsford, for appellant.

I. Hayden was the proper officer to make the deed. (Duncan v. Matney, 29 Mo. 335; Hunter v. Miller, 36 Mo. 147.)

II. The deed, when made, took effect by relation from the date of the sale. (Alexander & Betts v. Merry, 9 Mo. 514; Crowley v. Wallace, 12 Mo. 143; Thornton v. Miskimmon, 48 Mo. 219; Jackson v. Ramsay, 3 Cow. 75; Colyer v. Higgins, 1 Duvall, 7.)

III. The act of the Legislature, extending the lien of the judgments, was not unconstitutional. It only affected the remedy, but not any vested right.

IV. The executions were in force and valid at the time of levy; at least they are valid until the sale is attacked by a direct proceeding. (Groner v. Smith, 49 Mo. 318.)

Gage & Ladd and Woodson & Sheley, for respondent.

All and both of the renewal executions are null and void, and the deed was therefore void and properly excluded. (Turner et al. v. Keller et al., 38 Mo. 332.)

The case of Wood v. Messerly, 46 Mo. 255, puts the validity of the act of 1863, with reference to that execution, upon the ground of “the act of 1863 going into effect a few days before the expiration of the execution.” The case of Lackey v. Lubke, 36 Mo. 115, decided that prior to the act of 1863 an execution and levy became functus officio after the second term from the return.

The only case in which an ex-sheriff is authorized to execute a deed for property sold by him as sheriff, is where he had also levied upon the property. (R. C. 1855, p. 749, ch. 63, § 62.)

ADAMS, Judge, delivered the opinion of the court.

This is an action of ejectment. The defendant claimed title from plaintiff under a sheriff's deed. The court excluded this deed and rendered judgment for plaintiff. The deed purports to have been executed by John G. Hayden, late sheriff of Jackson county, September 22, 1869, and recites:

1. A judgment of the Jackson Circuit Court, rendered on the 15th day of March, 1858, in favor of Smart and Chrisman, administrators of Smith, against plaintiff Porter; and under that judgment execution issued January 16, 1861, to the sheriff of Jackson county, returnable to the March term, 1861, and on the 29th day of February levied on the premises sued for; that Burrus, the then sheriff, advertised the property for sale, and did not sell for the reason that no court was held for civil business; that on the 16th of February, 1865, another and new execution was issued by the clerk upon said judgment, directed to the sheriff of said county and returnable to the March term, 1865, in which last execution said former execution and the levy thereof were recited, and also that said real estate was not sold, in consequence of no court having been held at the first and second terms after said levy and the return of said execution, and by which said last execution the sheriff is commanded to cause to be made the debt and costs of said judgment out of the property levied on under said first execution until exhausted, and then of other goods and chattels, etc.

2. A judgment of the same court in favor of George W. Buchanan, administrator, against plaintiff and others, rendered at the March term, 1860, on the 22d day of March; execution, levy, advertisement, failure to sell, return, and new execution of same date and in same form as under the first judgment, except that the execution is recited to have issued the 30th of January, 1861, and to have been levied on the ______ day of ______, 1861.

3. A sale under said renewed executions, March term, 1865, to one Peacock, from whom defendant shows title.

The defendant read in evidence the judgments and the several executions and returns thereon, referred to in the sheriff's deed. The execution in favor of Buchanan is dated January 30, 1861, and the return says it was levied January 29, 1861. The levies were on both real and personal property belonging to the plaintiff Porter, and one of the executions was also levied on some personal property belonging to Phelps, one of the defendants in the execution, for which he gave a delivery bond and forfeited it.

1. The first point I will notice is Hayden's authority to make this deed. Burrus, who was the sheriff when the first executions were issued, made the levy and returned the executions, without any sale of the property levied on, and died. Then the new executions, which in fact were in the nature of executions of venditioni exponas, with a clause for further levy after exhausting the property levied on, were issued in 1865 to Hayden, the then sheriff, under the act of the Legislature of March 23, 1863. The first section of this act expressly authorized this kind of execution to be issued on levies which had been made at the time of the passage of the act. A venditioni exponas might have been issued on this levy without regard to the statute. But the statute not only authorizes a venditioni, but an...