Thornton v. Miskimmon

• Decision Date: 31 July 1871
• Citation: 48 Mo. 219
• Parties: PAUL THORNTON, Plaintiff in Error, v. WILLIAM W. MISKIMMON, Defendant in Error.
• Court: Missouri Supreme Court

48 Mo. 219

PAUL THORNTON, Plaintiff in Error,

v.WILLIAM W. MISKIMMON, Defendant in Error.

Supreme Court of Missouri.

July Term, 1871.

Error to First District Court.

Jno. F. Philips and Russel Hicks, for plaintiff in error.

I. The Circuit Court erred in permitting defendant to read in evidence the second deed from the sheriff. This deed is subsequent in date to the institution of this suit. As between the defendant in the execution and the purchaser, a sheriff's deed acquired even after issue joined may be used by defendant under certain circumstances without being pleaded puis darrien continuance. (3 Cow. 75.) But this rule is ever applied under the limitation that it must not affect the rights of strangers or third parties. (3 Cow. 79; 12 Mo. 147; 9 Mo. 525; 9 Pick. 167, 169-70; 8 Mass. 240; Laws of N. C. 380 et seq.; 4 Johns. 234; 13 Mo. 497.)

II. The equity doctrine of notice does not properly arise in this case.

( a) Sheriffs' sales are within the statute of frauds, and until a deed is made the title remains in the debtor. The existence of a judgment is not notice of a sale under it to a subsequent purchaser. (9 Mo. 527.)

( b) Granting the application of the doctrine of notice to this case, the evidence adduced below not only failed to fix notice on the plaintiff, but it absolutely and indisputably disproved its existence. So it must follow that if the verdict is attempted to be sustained on the ground that the circuit judge found that plaintiff had notice, it is a verdict without the shadow of evidence to support it.

( c) Possession is not actual notice. It serves merely to put the purchaser on inquiry as to the nature of the terre tenant's possession, and is evidence only of such facts as the legitimate and reasonable pursuit of this inquiry would probably lead to. (21 Mo. 321-23; 25 Mo. 318.) Had plaintiff gone to defendant, the most that can be inferred is that the defendant would have advised him that he held under sheriff's deed. This would have led to an examination of the deed. It passed no title. The amended returns and the second deed of the ex-sheriff were not then in existence, and it does not appear that at that time the defendant himself knew of the facts interpolated into the record afterward by the ex-sheriff.

( d) And when the possession of a party is consistent with his title as set out of record, he will not be permitted to rely on it as notice of another title, to the injury of a subsequent purchaser who has bought on the faith of the recorded title. (6 Serg. & R. 184-5; 15 N. H. 414-15.)

F. P. Wright, for defendant in error.

I. Plaintiff's objection to the reading of the deed, even if there had been any force in it, was cured by defendant's proving conclusively that he took possession of the property and moved on it a whole year before the judgment under which plaintiff claims was rendered, all of which was known to plaintiff.

II. It is submitted whether defendant's first deed, made as it was upon a sale under legal judgments, does not vest in defendant the legal title. The irregularities in this first deed could not be attached in this collateral proceeding.

III. The validity of a sheriff's deed does not depend on his return, and when one buys at a sheriff's sale, pays his money and receives a sheriff's deed, it is a matter of no consequence whether the return of the execution be imperfect or not made at all; the validity of his title cannot be affected by the irregularity or omission. (Brooks v. Roony, 11 Ga. 423; Doe ex dem. Wolf v. Heath et al., 7 Blackf. 154; 1 Johns. Cas. 155, note a; 3 Yerg. 179; Hill v. Kendall, 25 Verm. 528; Gates v. Gaines, 10 Verm. 346; 5 Verm. 602; Stewart v. Croes, 5 Gilm. 442; Draper et al. v. Bryan et al., 17 Mo. 83.)

IV. It is well settled in this State that courts will permit the sheriff to amend his return of the writ or process so as to correspond with the facts of the case, and it may be made at any time. (Webster et al. v. Blount et al., 39 Mo. 500.)

V. The sheriff had the legal right, and indeed it was his duty, to make a new deed upon the discovery of the irregularities in the first deed. (Wagn. Stat. 612, § 54.) The fact that he has made one deed with improper recitals will not prevent him from making another reciting correctly and giving the proper evidence. (Crowley v. Wallace, 12 Mo. 143.)

VI. Although an execution issued on a void judgment is void, yet the validity of an execution issued on a valid judgment will not be inquired into in a collateral proceeding. (3 Bac. Abr. 663; Stewart v. Stockton, 13 Serg. & R. 199; 1 Wall. 135.) But even if their validity could be inquired into, both judgments of the court and the executions thereon, which are in accordance with such judgments, are valid.

BLISS, Judge, delivered the opinion of the court.

In 1865 the defendant purchased at sheriff's sale certain real estate in the town of Clinton, upon four executions against one John G. Thornton. He paid a full consideration, took possession, and made improvements; but the sheriff's deed defectively described the judgments and executions, and the returns were imperfect. In August, 1867, an execution was issued upon another judgment against said John G. Thornton, and in October following the same property was bid in by the plaintiff for a nominal consideration; and this suit is brought to recover possession Pending the suit, the sheriff was permitted to amend his return and make a new deed, which was set out in an amended answer as the foundation of defendant's title; the new deed was admitted in evidence, and defendant recovered judgment. The points necessary to be considered go to the admissibility of this deed, and to its effect upon the rights of the plaintiff; for, as the record is made up, we need not consider the sufficiency of the first deed, with its defective recitals, to pass the title.

First, when a sheriff discovers errors in his return, it is his duty, upon leave, to amend it so as to conform to the facts (Alexander, etc., v. Merry, 9 Mo. 514; Crowley v. Wallace, 12 Mo. 143); and if he has not executed a proper deed, he should make another, which will ordinarily relate back to the sale. When the first deed is defective, I infer the right to make an amended one, from the duty of the sheriff to...