Rector v. Hartt

• Decision Date: 31 January 1844
• Citation: 8 Mo. 448
• Parties: RECTOR v. HARTT.
• Court: Missouri Supreme Court

8 Mo. 448

RECTOR

v.HARTT.

Supreme Court of Missouri.

January Term, 1844.

ERROR TO COOPER CIRCUIT COURT.

HAYDEN and MILLER, for Plaintiff.

1. A sheriff has power and authority to sell real estate in mass, or in the entirety, under execution, although it may be susceptible of division, and may, in fact, consist of several pieces; the statute, pointing out the mode of selling land under execution, is merely directory, and a non-compliance with its provisions does not render the sale void. Woods v. Morrell, 1 Johns. Ch. R. 501; 2nd part of New York Digest, p. 1022, §§ 510, 511; 6 Wendell, 522; Hicks & Hammonds v. Perry, 7 Mo. R. 346; 1 Monroe's Ky. R. 94-5.

2. Whether the sheriff, in making a sale under execution, pursues the directions of the statute, viz: whether he sells in mass, or in lots, or parcels, is a matter which cannot be inquired into collaterally. In such cases, relief or redress can only be had by direct application to the court under whose process the sale is made, or by resort to a court of equity, where if the sale be set aside, all parties may be placed in statu quo. Thompson v. Phillips, 1 Baldwin's C. C. R. 271-2, &c. 11 Serg. & Rawle, 424; 2 Peters' R. 163-9; Thompson v. Tolmier, 10 Peters' R. 450, 479; 6 Wend. R. 522; 3 Wash. C. C. R. 550, 557; 3 Marshall's Ky. R. 281; 1 Bibb's R. 155; 2 ibid. 518, 202; 7 Mass. R. 292-6; 11 ibid. 227; 3 Howard's R. 64-5; 1 Serg. & Rawle, 101; 2 Harrington's R. 474; 1 ibid. 477; 1 Monroe's Ky. R. 94.

3. The acknowledgment of a sheriff's deed is a judicial act, and is in the nature of a judgment of confirmation, which cures all defects in the mode of sale which the court issuing the process had the power to remedy. The purchaser depends upon the judgment, the levy, and the deed of conveyance: all other questions are between the parties to the judgment and the sheriff; and the object of our statute, in requiring the deed for the land to be acknowledged by the sheriff in open court is--to enable the court to see and know that the sheriff, in making the sale, has not abused the process under which the sale was made, and to afford the parties interested an opportunity, before the confirmation of the sale, to make to the court any objections which they may have thereto. Baldwin's C. C. R. 272; 1 Serg. & Rawle, 101; 4 Yates, 214; 6 Binney, 254; 2 Serg. & Rawle, 54-5.

4. Even if the acts of the officer, in making the sale to Adams, could be inquired into collaterally, yet, under the circumstances of this case, the sheriff, in making the sale, did not exercise his discretion unsoundly, for the following reasons: 1st. Because there were no monuments, or other evidence, upon the land itself, showing that any part of it had been laid off in lots for separate and distinct enjoyment; on the contrary there was but one single tenement or house thereon; nor were there any streets, lanes, or alleys cleared or opened, by which the sheriff could have been guided in making his levy and sale of the land in lots; nor was there any town plat made, signed and acknowledged, as required by law, recorded in the recorder's office of Cooper county, by Hartt, or by any one else, to which the sheriff could have referred, showing that there were town lots laid off upon the land in dispute; and to have required the sheriff to have made his levy, advertisement and sale of the land in lots or parcels, describing them with sufficient certainty to point out to the purchaser what he was buying, would have been requiring of him, under the circumstances of this case, an impossibility.

5. The sheriff could not sell, neither was he bound to sell, the real estate of Hartt, under execution, as town lots, and in a manner that Hartt could not sell it himself; and, at the time of the sale to Adams, Hartt could not have sold any part of the quarter section of land as town lots, without subjecting himself to a severe penalty for the transgression; and he could not require the sheriff to trample upon the statute for his benefit. 2 Digest of 1825, p. 763, §§ 1-4. And aside from this statute, Hartt, being merely a tenant in common with others in the quarter section, could not have sold to any person any particular part of the quarter section by metes and bounds, nor could he grant a servitude therein without the consent of his co-tenants; nor could the same be executed by extent, &c., in parts by metes and bounds, the same being void at common law. That the whole, or a part only, of his undivided interest in the whole tract of land could be sold by him, or upon execution by the sheriff. 4 Kent, p. 368; 3 ibid. p. 436; 9 Mass. R. 34; 18 Maine R. 229; 9 Vermont R. 138; 12 Mass. R. 348, 490; Vamain v. Abbott, 13 Mass. R. 257; 14 Mass. R. 404; 2 Conn. R. 243.

6. By the law of this State, there is but one way or mode by which a person owning land can legitimately lay off a town upon his land, and sell lots therein by himself or by another, and that is the one which is pointed out in the act above referred to, and which has been since, in substance, if not in words, re-enacted. And there are but two ways, or modes, of dedicating streets and alleys to the use of the government, and those must either be by express grant, as is pointed out by the statute above referred to, or by the actual use thereof as a public thoroughfare by the public, for so great a length of time as to give rise to the presumption that such use thereof was, and is, with the consent of the owner of the land, amounting to prima facie evidence of a grant to the public of the servitudes; and perhaps this may be yielding more than by our statutes is warranted. But in this case the streets were never used or opened prior to the sale. 13 Eng. Com. L. R. 45-6, Jarvis v. Dean (same case in 3 Bingham, p. 447); 2 Strange's R. 1004, Sir John Lade v. Shepherd; Roberts v. Kar, 1 Campbell, 262; 6 Peters' U. S. R. City of Cincinnati v. Lessee of White, 433, and following.

7. The Circuit Court erred in permitting Hartt to read, in evidence to the jury, the copy of the deed of release to Thomas Rogers, as also the other deeds of release for certain lots, for the following reasons: 1st. They, and each of them, were irrelevant, having no tendency to show that he (Hartt) had laid off any town lots upon the quarter section sued for, or that he had adopted the laying off lots by Morgan and Lucas; for the only plats in the possession of the recorder, and to which reference in the deeds can be supposed to apply, are the plats wafered in the recorder's books, which are not signed or acknowledged by Lucas and Morgan, or any one else, as the owners of lots intended to be represented by them; and even if they had been, or were signed and acknowledged by Lucas and Morgan, there is nothing stated upon the face of these plats which shows that the lots therein represented are situate upon the land sued for, nor on what land situate; therefore these deeds and plats, taken separately or in connection, could not have informed the sheriff that there were lots laid out upon the land, so as to have guided him in the levy and sale; and he was not bound to inquire for deeds in the country, or to guess where the lots on these plats were situate; and the plats not being recorded or acknowledged, agreeably to law, were not notice to any one. The copy of the deed to Rogers was improperly admitted, without accounting for the non-production of the original, even if such evidence were relevant. The other deeds being for lots off the quarter, as proven by the witnesses, did not conduce to show any dedication of streets on the quarter; and so it is in this case: as the streets and alleys were not expressly dedicated or granted to the public by Hartt, nor ever used by the public a such, the mere deed of release to Rogers conferred no public right to streets, &c., but carried a mere private right in favor of Rogers, the grantee, to pass to and from the lot released, over the adjacent lands of the grantor.

8. The court erred in refusing to permit the defendant, Rector, to read from the record book of recorded deeds the copy of the deed from Wm. M. Adams to Mary Gilman, under whom defendant claimed title to the lot of which he was possessed, after proving that the original had been, many years since, delivered to the agent of Mrs. Gilman by the recorder, both of whom being residents of Kentucky. 7 Pick. R. 10.

9. The Circuit Court erred in rejecting the record of the proceedings of Hartt, whilst in custody upon the same execution under which the land was sold, to obtain the relief granted by statute to insolvent debtors; in which proceeding, within one month from the time of sale, he expressly declared and swore, in writing, that he did not own but one lot in Boonville, and owned no land, and this lot was not on the quarter sued for. From this sworn declaration, taken in connection with other circumstances proved on the trial, the jury could well infer that the land had been sold by the sheriff with his consent, he not offering any proof that he had sold it himself; especially when taken in connection with the facts that he had made no objection to the sale, though made so recently in his presence, and having stated in his said proceedings, as an insolvent, the balance of the debt yet remaining due Smith (plaintifff in the execution), after receiving the credit indorsed by the sheriff. The said written and sworn statement, virtually acknowledging a transfer of the property mentioned in the patent, and negativing the idea that he then owned any lots upon the quarter, none being mentioned. If the land or lots had been sold by him prior to this proceeding, when was it, and to whom?

10. The Circuit Court erred in rejecting the record of the assessment made by the assessor of Cooper county, in the year 1828, of Hartt's lands, by which assessment it appears that Hartt assessed no town lots upon the quarter, though twelve years after the alleged laying off of the land in lots by Morgan and Lucas, and...