Warner v. Sharp

• Decision Date: 31 October 1873
• Parties: GRISWOLD E. WARNER, Plaintiff in Error, v. JOSHUA SHARP, Defendant in Error.
• Court: Missouri Supreme Court

53 Mo. 598

GRISWOLD E. WARNER, Plaintiff in Error,

v.JOSHUA SHARP, Defendant in Error.

Supreme Court of Missouri.

October Term, 1873.

Error to Montgomery Circuit Court.

Powell & Hughes, for Plaintiff in Error.

I. The deed from the sheriff was improperly admitted. It does not appear from the deed, what court, if any, or authority, ordered the sale of the real estate in said deed described. (Tanner vs. Stine, 18 Mo., 580; Lackey vs. Lubke, 36 Mo., 115; McCormick vs. Fitzmorris, 39 Mo., 24; Buchanan vs. Tracy, 45 Mo., 437.)

2. The date of the order is totally omitted. (Stewart vs. Severance, 43 Mo., 322; Buchanan vs. Tracy, 45 Mo., 437.)

A. A. Buckner, for Defendant in Error.

I. The deed upon its face shows, that this order was made by the County Court at its June Term, 1862, adjourned over. No other court then, except the Circuit Court, could have jurisdiction to make a sale. There was no Circuit Court in June, but there was a regular term of the County Court in June, of which the Circuit Court and this court will take judicial notice.

ADAMS, Judge, delivered the opinion of the court.

This was ejectment for land in Montgomery county, being the west half of lots one and two of the north-east quarter, and the north-west quarter of section three, in township fifty of range six.

Both parties claimed title under Josiah Whiteside.

The defendant claims by virtue of a sheriff's deed made under a foreclosure sale of a mortgage, which had been given by Whiteside to secure the loan of school monies. The mortgage was given prior to the emanation of plaintiff's title, and was duly acknowledged and recorded.

The case was submitted to the court sitting as a jury, and resulted in a finding and judgment for the defendant.

On the trial, the defendant gave evidence conducing to show, that in 1864 all the records of Montgomery county had been destroyed by fire, and also gave evidence conducing to show, that the County Court of Montgomery county, on account of non-payment of the interest due on the debt from Whiteside, had ordered the land under the mortgage to be sold by the sheriff.

The defendant then offered the sheriff's deed, which was made in pursuance of the foreclosure sale. The plaintiff objected, because the recitals of the deed did not show by what court the order of sale was made. The deed recites, that at the June adjourned term, it was ordered, that the sheriff sell to the highest bidder at the court-house door, in the town of Danville, for cash in hand, on the 4th...