Estes v. Long

• Decision Date: 30 April 1880
• Citation: 71 Mo. 605
• Parties: ESTES, Plaintiff in Error, v. LONG.
• Court: Missouri Supreme Court

71 Mo. 605

ESTES, Plaintiff in Error,

v.LONG.

Supreme Court of Missouri.

April Term, 1880.

Error to DeKalb Circuit Court.--HON. JOSEPH P. GRUBB, Judge.

AFFIRMED.

S. G. Loring for plaintiff in error.

Shanklin, Low & McDougal for defendant in error.

HENRY, J.

Plaintiff sued in ejectment for the following tracts of land: Southeast quarter of southeast quarter of section 4, township 59, range 30; west half of northeast quarter of section 9, township 59, range 30; and east half of northwest quarter of southeast quarter of southeast quarter of section 9, township 59, range 30. Fountain Hargis and the executors of William Hargis, defendant's grantors, were formal parties. The several answers denied the allegations of the petition and pleaded title in defendant Long and the statute of limitations. The entire southeast quarter of section 4 was patented to plaintiff in 1858. The west half of the northeast quarter of section 9 was patented to Alexander Fudge in 1848. The southeast quarter of the southeast quarter of section 9 was conveyed by the administrator of one Mathers, in 1851, to one Price, who conveyed it to plaintiff in 1854. At the March term, 1862, of the De Kalb circuit court, Alexander Fudge obtained a judgment against Estes, the plaintiff, for $990.35. On the 10th day of June, 1862, a general execution was issued by the clerk of said court on said judgment, returnable on the 1st day of September, 1862, and delivered to Joseph Branscom, then sheriff of said county, who, on the 7th day of February, 1863, levied it upon all the land in controversy, except the west half of northeast quarter of section 9, and also upon the east half of northwest quarter of section 9, not in controversy in this suit, and to which it does not appear that any of the parties had a title. On a sale under that execution, Alexander Fudge became the purchaser of the southeast quarter of the southeast quarter of section 9, and Fountain Hargis of the southeast quarter of section 4.

1. EXECUTION RETURNABLE AT WRONG DAY, NOT VOID.

It will then be seen that all of the lands patented to plaintiff and conveyed to him by Price were levied upon and sold under the execution, and the only question with respect to that branch of the case is whether the sheriff's levy of the execution, made after the day named therein for its return, and the subsequent sale, are valid. Branscom's term of office expired before conveyances of the land under the execution sale were made to Fudge and Hargis, and in 1874, under the statute, (section 62, page 613, Wagner's Statutes,) an order was duly made by the circuit court of De Kalb county, requiring the sheriff of said county to execute deeds to Hargis and Fudge for the lands purchased by them respectively at said sale. These deeds, when executed, related back to, and carried the title from, the date of the purchase, as against the defendant in the execution, plaintiff here. A formal entry of the judgment in favor of Fudge against Estes was not made in 1862, but there was enough of record to authorize the nunc pro tunc entry of the judgment at the April term, 1874. Groner v. Smith, 49 Mo. 323.

There is, therefore, nothing left to be considered on this branch of the case but the validity of the levy of the execution after the day therein named for its return. By an act approved March 7th, 1861, in force when this execution was issued, it was provided that “all executions issued upon any judgment rendered by any court of record shall be returnable to the second term of said court after the date of said execution.” (Session Acts 1860, page 28.) The first regular term of the De Kalb circuit court after the execution was issued began on the first Monday in September, 1862, and it should have been made returnable to the next regular term of said court, March, 1863. This error of the clerk, however, did not invalidate the writ or make it returnable in law before the March term of the De Kalb circuit court, 1863. It was still in force until the March term, 1863, notwithstanding the clause requiring it to be returned on the 1st day of September, 1862. Milburn v. The State, 11 Mo. 188. In Stevens v. Chouteau, 11 Mo. 383, the court distinguished between executions issuing from courts of limited and inferior jurisdiction and those emanating from courts of record of general jurisdiction. In that case, an execution was issued by a justice of the peace, returnable in sixty days, instead of ninety, as provided by law, and it was held void, ...