Ware v. Johnson

• Decision Date: 31 October 1877
• Citation: 66 Mo. 662
• Parties: WARE v. JOHNSON et al., Appellants.
• Court: Missouri Supreme Court

66 Mo. 662

WARE

v.JOHNSON et al., Appellants.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Nodaway Circuit Court.--HON. HENRY S. KELLY Judge.

Johnson & Jackson for appellants.

1. The sheriff was clothed with ample power to sell the land at the time of the sale at which Jones purchased; a valid execution had issued upon a regular judgment. Buchanan v. Tracy, 45 Mo. 437.

2. There is no such thing as a formal levy of an execution on real estate, as there is upon personal property; in the latter case it includes an actual seizure, while in the former our execution not being an extent, the levy begins with the sale. Wood v. Colvin, 5 Hill 230; Draper v. Bryson, 17 Mo. 71.

3. Where the sale is to a stranger there need be no notice of sale. If the judgment and execution be regular, a stranger to them will be protected in his purchase. Curd v. Lackland, 49 Mo. 451; Draper v. Bryson, 17 Mo. 71

4. The sale of the land was by a description well known by all parties, and even better than had it been by a technical description, and no injury could result to the owner. And that being the case, the purchaser, Jones, was entitled to a sheriff's deed by the description under which it was sold, and if the sheriff made a mistake in describing the land he should have made another deed, and kept on making until the purchaser received a deed properly describing the land as “Hagey's Bend,” or lot 2, section 30, township 65, range 37, Nodaway county. Thornton v. Miskimmon, 48 Mo. 219; Ware v. Johnson, 55 Mo. 500; McPike v. Allman, 53 Mo. 551. All the essential recitals were contained in the first sheriff's deed to Jones, except a proper description of the land. And we submit, that if the land was sold by a proper description, or by one well known so that the property sold could be intelligibly distinguished and identified, then Jones was entitled to a deed containing such proper description, and the sheriff should have made it to him, and when so made it would relate back to the time of sale, and cut out all intermediate purchasers with notice, such as plaintiff was proved to be. Thornton v. Miskimmon, 48 Mo. 219; Harris v. Vinyard, 42 Mo. 568; Wilhite v. Wilhite, 53 Mo. 71.

5. After Jones' purchase and payment of the purchase money nothing the sheriff could do or fail to do, could affect the validity of the sale, nor Jones' right to the land, and a proper deed therefor. He had no control over the sheriff after that and so far as he was concerned, the sheriff need make no return of the sale at all. Buchanan v. Tracy, 45 Mo. 437.

John Edwards for respondent.

The court below treated the amended deed of T. K. Beal, made March 22, 1875, as a nullity, for the reason that the levy, report and advertisement of sale of November 2, 1863, all contained the same description as that contained in the deed made in pursuance of such sale November 4, 1863. Beal, who made the sale and both deeds, testified that he procured the description, which he inserted in the amended deed, from the tax book, and from the surveyor and the old deed of November 4, 1863. The second deed, then, was no amendment, for the old deed correctly recited the levy, notice and report of sale as they actually occurred. The so-called deed was therefore a gross fraud, containing false recitals, and was made on an ex parte application of Beal, who was instigated by defendants, in so doing, to bolster up their defense in this action. Plaintiff had no notice of the proceeding and the amended deed should never have been made, Scruggs v. Scruggs, 46 Mo. 271. Such amended deeds cannot be made so as to work injustice to strangers. Alexander v. Merry, 9 Mo. 510; Jackson v. Bard, 4 Johns. 230; 2 Washburn on Real Prop., (2d Ed.) book 3, Cap. 4, Sec. 2, par. 46, p. 619. Amended sheriff's deeds are analogous to nunc pro tunc judgments; there must be some certain memoranda or basis, showing that the proposed amendments are in conformity to the facts; Hovey v. Wait, 17 Pick. 196; Hyde v. Curling, 10 Mo. 359.

NORTON, J.

This is a suit in ejectment, instituted in the Nodaway circuit court, for the recovery of lot 2, section 30, township 65, range 37, containing 37 11/100 acres, in said county. Defendants in their answer admit that they were in possession of the land, but deny that such possession was wrongful. They allege that on the 29th day of April, 1861, one Robert R. Russell owned the land in question, and that on that day judgments were rendered against him in the circuit court of Nodaway county, upon which, executions were issued to the sheriff, who levied the same on said land; that said land was offered by him for sale at the November term, 1863, of said court, and was sold to one Jones for the price of $10.25 per acre; that the sheriff in executing a deed to said Jones, defectively described the land so as to convey only one-fourth instead of the whole tract; that the plaintiff was present at said sale, and bid for said land; that the sheriff, who made the sale, executed in 1875, after his term of office expired, a second deed to Jones, correcting the mistake in the former deed, and conveying the whole of lot 2; that in 1865, Henry Jones conveyed the land to defendant Elizabeth Johnson, by the same description as that contained in the deed first made by the sheriff. It was further alleged that the plaintiff, with full knowledge of defendant's right to the land, through the sheriff's sale to Jones purchased the same at sheriff's sale made in 1866, under an execution which issued on a judgment rendered against said Russell subsequently to those under which Jones bought. The new matter set up in the answer was denied by replication. The cause was tried by the court, and judgment rendered for plaintiff, for all the lands in dispute, except the n 1/2 of w 1/2 of lot 2, from which defendant has appealed. No instructions were given, and no exceptions were made to the reception of evidence, and the error complained of is that the judgment was against the evidence. Both parties claim title under R. R. Russell who entered the land, and plaintiff, in support of his title, offered the plat book of original entries, showing that section 30, township 65, range 37, was divided into lots numbered from one to...