City of Jefferson v. Curry

71 Mo. 85

• Court: Supreme Court of Missouri
• Decided: October 15, 1879
• Status: Published

Opinion

Napton, J.

The only point necessary to-be determined in this case is whether a sale of two lots under an execution issued on the 11th day of March, 1878, returna.ble to the May term of the same year, which was never delivered to the sheriff, until November 23rd, 1878, and of course never levied until after the expiration of the return day, was properly quashed by the circuit court.

The lots were purchased by the city under this execution upon a judgment creating a special lien on them for the taxes due. One of the grounds for quashing the execution and declaring the purchase and deed void, was that the city had no power to purchase, but this was ruled otherwise in Chambers v. City of St. Louis, 29 Mo. 576, and McIndoe v. City of St. Louis, 10 Mo. 576; and the case of Ray County to use of, &c., v. Bentley, 49 Mo. 236, does not conflict with these decisions. Indeed in the first named case it was observed by Judge Scott: “ Whether these lands are necessary for the corporation is a question that can only arise in a proceeding instituted by the State against the city for abusing her right to purchase lands. The city had a power to purchase ; if that power has been exceeded, then her charter has been violated and may be forfeited in a suitable proceeding, and until that is done, she will hold the land.” .

As the execution was a nullity in this ease, never having been levied until after the return day, the court properly quashed the proceedings under it, and the judgment must be affirmed.

The other judges concur.