Tanner v. Stine

• Decision Date: 31 October 1853
• Citation: 18 Mo. 580
• Parties: TANNER, Defendant in Error, v. STINE, Plaintiff in Error.
• Court: Missouri Supreme Court

18 Mo. 580

TANNER, Defendant in Error,

v.STINE, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1853.

1. Under the 38th and 45th sections of the act of 1835, concerning ““executions,” a sheriff's deed which recited that “the land was exposed to sale” at the court house door, in the city St. Louis, during the ______term of the ______ court of ______, for the year eighteen hundred and forty______, was held void.

Error to St. Louis Court of Common Pleas.

This was a civil action commenced by Edwin Tanner against Emily Stine, in 1850, the object of which was to obtain the legal title to a lot in the common fields of Carondelet, containing one and a half arpents in front by forty arpents in depth.

The plaintiff claimed under a deed from William Chambers, who purchased the land at a sheriff's sale, under an execution against Jacob R. Stine, and received a sheriff's deed therefor dated November 1, 1843. This deed, after reciting the judgment, execution, levy and advertisement, contains the following recital: “by virtue of which said execution and advertisement, I did, on the 19th day of April, in the year of our Lord eighteen hundred and forty-three, between the hours of nine in the forenoon and five in the afternoon of that day, agreeably to said advertisement, at the court house door, in the city of St. Louis, during the _______ term of the _______ court of _______, for the year eighteen hundred and forty ____, expose to sale at public auction, for ready money, all the right, title, claim, interest, estate and property of the said Jacob R. Stine, of, in and to, the above described real estate,” &c., and “William Chambers being the highest and best bidder,” &c. The judgment, upon which the execution under which Chambers purchased issued, was rendered on the 19th of August, 1842, and was for a debt which accrued in 1839.

The defendant claimed the land under a deed from James V. Prather, to whom her husband, Jacob R. Stine, conveyed the same by deed dated November 28, 1839. The plaintiff attacked these deeds as without consideration and fraudulent. The court below submitted the case to the jury upon the question of fraud, and refused to instruct that the sheriff's deed passed no title by reason of its non-conformity to the requirements of the statute. There was a verdict for the plaintiff, and the defendant sued out a writ of error.

E. & B. Bates, for plaintiff in error.

There is a fatal defect in the sheriff's deed to Chambers. The sheriff's power to sell is a mere legal power that must be exactly followed. Although it be true that, under the statute, certain required facts, preliminary to the sale, are presumed to exist from recital in the sheriff's deed, yet it required the power of the statute to make it so. But the sheriff's deed itself is not within the healing power of the statute. It must speak for itself, and no presumptions or intendments can be made in its favor. Its office is, to effect a forcible, legal transfer of the title, without the act or consent of the owner, and therefore, it must be strictly legal or it cannot convey a legal title. (9 Mo. 878; 14 Mass. 29; 15 Pick. 28.) The act of the court in giving judgment, and the acts of the officers preliminary to the sale are beyond the control of the purchaser, and therefore errors in them shall not injuriously affect him; but he is a party to the deed, may refuse to receive a bad one, and may compel the sheriff to make him a good one, when he was complied with the terms of the sale on his part. (R. C. 1835, §§ 38, 45.)

F. A. Dick and F. P. Blair, jr., for defendant in error.

The sheriff's deed to Chambers is valid as a conveyance of the land. The objection urged against this deed is, that the blanks for the term of the court at which the sale was made and for the year at which such term was held, are left unfilled. The date of the execution, acknowledgment and recording of the deed is given, and also the time of sale, stating the day and between what hours of the day the sale took place; so that there is no uncertainty as to when the sale was made, upon the face of the deed. Now, by referring to sections 38 and 45 of the act of 1835, concerning “executions,” under which this deed was made, it appears that the law does not require the deed to state that the property was sold during the term of the Circuit Court. But even if the deed was required to recite that the sale took place during the term, yet the omission of it, or a mis-recital as to this, would not invalidate the deed. (Hill v. Streeter, 5 Cow. 529; Witherell v. Jones, 9 Cow. 182; Walker v. Carson, 16 Mo.; Landes v. Perkins, 12 Mo. 238; Reed v. Austin, 9 Mo. 731; Armstrong v. McCoy, 8 Hammond [Ohio] 128; Perkins v. Dibble, 10 Ohio, 433; Cherry v. Woolard, 1 Iredell [N. C.] 438; Hattan v. Dew, 3 Murphy [[[[[N. C.] 260; Wilkins v. Rue, 4 Blackf. 263.)

SCOTT, Judge, delivered the opinion of the court.

1. This cause will turn upon the sheriff's deed executed to Chambers, under whom Tanner, the plaintiff below, claims. A great deal was said in the argument and many cases were cited, to show the length that this and other courts have gone in support of sales made under judicial process. But the precise point involved in this litigation, we are not aware has ever been decided by this tribunal. The deed of the sheriff to Chambers recites that, agreeably to an advertisement accompanying the deed, at the court house door in the city of St. Louis, during the _______ term of the _______court of _______, for the year eighteen hundred and forty _____, he exposed to sale, &c.

The 38th section of the act concerning executions (R. C. 1835) enacts, that when real estate shall be taken in execution, it shall be duty of the officer to expose the same to sale at the court house door, on some day during the term of the Circuit Court for the county where the same is situated, having previously given twenty days' notice of the time and place of sale, &c. The 45th section of the same act makes it the duty of any officer who shall sell any real estate, to make to the purchaser a deed, to be paid for by the purchaser, reciting the names of the parties to the execution, the date when issued, the date of the judgment and other particulars, as recited in the execution; also a description of the property, the time, place and manner of sale, which recital shall be received as evidence of the facts therein stated.”

When judicial proceedings have been assailed for irregularity, with a view to destroy titles acquired under them, the courts have all been liberal in intendments for their support. So likewise great indulgence has been shown to the acts of officers in the sale of lands under judgments and decrees, when the party relying on those acts was not aware of the irregularity, and had no control of the officers in their performance. It will not be maintained, that the sale by the sheriff of real estate under a judgment is the execution of a statutory power, and that his authority must be strictly pursued, in order to render the sale valid. This is the principle applicable to the sale of collectors for the nonpayment of taxes. But the authority of the sheriff, in sales of real estate, depends on the judgment and execution, and the compliance with certain acts which, for the protection of debtors, the law requires to be performed previous to the sale.

Cases, with respect to recitals in sheriffs' deeds, have been cited from the Ohio Reports. These are Armstrong v. McCoy, 8 Ham., and Perkins v. Dibble, 10 Ohio, 433. In the first of these cases, the objection to the deed was, that it did not recite all the executions that issued upon the judgment, before the sale was affected. This objection was...