Hicks v. Ellis

65 Mo. 176

• Court: Supreme Court of Missouri
• Decided: April 15, 1877
• Status: Published

Opinion

Hough, J.

This was an action of ejectment. Both parties claimed title through G. M. B. Maughs; the plaintiff by direct conveyances from said Maughs, executed in 1868 and 1873, and defendant by a sale under execution against said Maughs, made in 1865. Whether the sale under execution was a valid one, and passed the title of said Maughs to the property in controversy, is the question presented for our determination. In April, 1860, suit was instituted in the Circuit Court of Howard county by Nancy Carrole v. James H. Reed, J. D. Smith and G. M. B. Maughs, on two promissory notes executed by them. Service was had on Smith in Howard county. The following writ directed to the sheriff' of Jackson county, accompanied with a copy of the petition, was served according to law :

State or Missouri, 1 County or Howard, j

Sct.

State of Missouri to the Sheriff of Jackson County, greeting:

We command you to summon James H. Reed and G. M. B. Maughs to be and appear before the Judge of the Howard County Circuit Court at Eayette, in Howard county, on the first Monday of June next, and answer the foregoing petition of Nancy Carrole, plaintiff, and have you then and there this writ. Witness Charles IT. Stewart, clerk of the said court, under the seal thereof, at office in Payette, on the 24th day of April, 1860.

[L. S.] C. H. Stewart, Clerk.

On the 10th day of December, 1860, final judgment by default was rendered against all the defendants. Execution was issued on this judgment on the 31st day of January, 1861, directed to the sheriff of Jackson county, returnable on the first Monday of December following, which was levied upon the land in controversy, and duly returned with said levy indorsed, no court having been held in Jackson county prior to the return day of said writ, at which said land could be sold. On the 1st day of August, 1862, execution was issued to the sheriff' of Howard county, which was returned unsatisfied. On the 19th day of January, 1863, in pursuance of an order made by the Howard Circuit Court on the 3rd day of said month, reciting the levy and failure to sell under the execution issued in 1861, a writ of venditioni exponas, returnable to the second succeeding term, was issued to the sheriff of Jackson county, by virtue of which said sheriff advertised and sold the property in controversy on the 15th day of March, 1865, no term of the circuit court having been held in said county of Jackson prior to that time. At said sale the defendant Mastel and one Ellenberger became the purchasers, and received a deed from the sheriff. In 1867 Ellenberger conveyed his interest to Mastel, under whom the other defendants claim possession. The regular time for holding the circuit court in Howard county during the years in which the foregoingproceedings occurred was on the first Mondays of June and December. The term at which the writ venditioni exponas was ordered is thus designated in the entry of record: “Howard Circuit Court, special term, January 3rd, 1863. At a special term of the Howard Circuit Court, begun and held at the courthouse iu the City of Eayette, Howard county, Missouri, on the 3rd day of January, 1863, were present Hon. George IT. Burkhart, Judge of said court, &c.,” then follows the order of vendí. A duly certified transcript of all the foregoing proceedings in the circuit court of Howard county and a certified copy of the sheriff’s deed were offered in evidence, but were excluded by the court on the following objections made by the plaintiff':

1st. Judgment against Maughs and others was and is absolutely void, said court having no jurisdiction over the person of said defendant, as appears by the record offered in evidence. -

2nd. The Howard Circuit Court had no jurisdiction to order a venditioni exponas at the special term held in January, 1863; said order and writ were nullities, and gave the sheriff no power to sell.

3rd. Even if said vendi. was regularly issued, the sheriff could not sell the land described therein after the return day of the writ.

4th. The issuance of the execution to the sheriff of Howard county in August, 1862, was an abandonment of the levy made in Jackson county in 1861.

5th. The deed fails to recite the names of the parties to the execution, and shows no legal authority to sell the land.

6th. The deed does not recite any execution in form or substance, known to the statutes of Missouri, concerning executions, or known to the common law, and is therefore void.

• The deed offered in evidence did not, in totidem verbis, state the names of the parties to the execution under which the levy was made, but they were clearly ascertainable from other recitals in the deed, and we are inclined to think that the deed of itself was admissible, though it is not necessary to determine this point, as another deed from the sheriff, perfect in all respects, dated the 20th day of March, 1873, was offered by the defendant, to which the same objections heretofore stated were made, and none other, and the same was excluded by the court. As this conveyance was subsequent to the date of the deeds from Maughs to the plaintiff, and no objection was made on that account, and as it cannot be pretended that the objections numbered five and six were applicable to it, it is quite evident that the court, in excluding the first deed and transcript, considered some one or all of the first four objections made by the plaintiff as fatal to the defendant’s case.

1 summons: sufficieneyof.

As to the first objection, the case of Payne v. Collier, 6 Mo. 321, is, we think, sufficiently in point to be decisive of ^ia'fc ease ^*1® wr^ required the defendant to appear before the judge of the circuit court at the next term, to be holden at St. Louis on a certain day, and the writ was held to be sufficient. The statute prescribing what a writ of summons shall continue was the same then as now. The writ now under consideration is in our judgment equally specific. It commanded the officer to summon the defendants to appear before the judge of the Howard County Circuit Court, at Eayette, in Howard county, on the first Monday in June next, (which day was therein fixed as the return day of the writ,) and answer the petition of the plaintiff This court will take judicial notice that the first Monday in June was the day fixed by law for holding the circuit court in that county, and the defendant was bound to take notice of that fact. A requirement to appear at that time, which was the return day of the writ, and answer the petition of the plaintiff', was tantamount to a requirement to appear in court on that day, and was a substantial though not a literal compliance with the statute. As was remarked by Judge McG-irk, in the case cited, “there was no possible chance for the defendant to be deceived or misled about the matter.”

2 evidence: prereemess oí°offieiai action.

The second objection based upon the provisions of Secs. 48 to 53 inclusive of the Rev. Stat. 1855, in relation to “Courts—Judicial power,” wherein it is provided that special adjourned sessions may be held in continuation of the regular term upon its being so ordered by the court or judge in term time, and entered by the clerk in the minutes of the court. It is further provided in one of said sections that special terms of the circuit court may be held for the trial of any person confined in jail two months before the regular term, but that the ordinary jurisdiction of the court can only be exercised at such special terms by the consent of the parties. The plaintiff seems to have overlooked the 45th section of the same statute, which is as follows : “If at any time after the commencement of a term it happen that the court shall not be held according to its adjournment, it shall stand adjourned from day to day until the evening of the third day; or, if the judge of any court cannot attend any regular term, he may notify the sheriff of the county in which such court should have been held, previous to the first day of such term; and it shall be the duty of such sheriff, by proclamation, at the court-house door, to adjourn such court to the next regular term, or to such special or adjourned term, as the judge shall direct.” This section, in our opinion, furnishes ample warrant for designating as “ special” terms other than those called for the trial of persons who have been confined in the jail for two months : and as in such cases omnia prossumuntur rite et solemniter esse acta donee probetur in contrarium, it devolved upon the plaintiff to show that the special term at which the order for the venditioni exponas was made was a special term appointed for the sole purpose of trying persons confined under criminal process.

3. venditioni ex-the Writ.

The third objection involves the construction of the act of Assembly of March 23, 1863, in relation to executions. The venditioni exponas was issued in January, 1863, was made returnable to the December term 1863, but was not executed until March, 1865, and, unless such writs are within the purview of said act in relation to executions, it must be conceded that at the time the sale was made the force of the writ was spent and the sheriff had no authority to sell. Bank v. Bray, 37 Mo. That act is as follows : “ Sec. 1. That all executions heretofore issued and not satisfied, either in whole or in part, and all liens which accrued in virtue thereof, are hereby revived and declared to be in full force, and that said liens shall exist and continue according to the priority of said executions, until the same are satisfied; and that in all cases where said executions have been returned not satisfied, either in whole or in part, it shall be the duty of the clerks to issue new executions referring to the former ones, and in case levies have been made to recite such levies in said renewal executions, and authorize and command the officer to whom such renewal executions are directed, to levy such renewal executions upon additional property, if the former levy shall be deemed insufficient to satisfy such executions; but in case of sale of property under such executions, to first exhaust the original levy before selling any property embraced in such subsequent levy. Sec. 2. That executions now issued, or that hereafter may be issued from any court of record and levied upon real estate, if from any cause the real estate shall not be sold at the next term of court, from which said execution has issued or may hereafter be issued, said execution and lien of said levy shall remain and continue in full force until a term' of court is held in the county when said property may or can be sold. Sec. 3. That executions now issued or that may hereafter be issued from a court of record in one county and sent to the sheriff of any other county in this State, shall be levied on real estate and from any cause the circuit court of said last mentioned county shall not be held before the return day of said execution, said sheriff’ shall retain said execution, and the levy made by virtue thereof shall remain in full force until there shall be a term of the circuit court in said last mentioned county at which said real estate may be sold.” The general purpose of this act is plain, though its phraseology is exceedingly awkward and inexplicit. It has several times been the subject of judicial interpretation, but in no case precisely like the present.

4 judicial sale. effect^of^act^ol raneerning exeorigi°nai°wrftTJ of

A writ of venditioni exponas is undoubtedly a writ of execution. Bouvier Law Diet. tit. Execution-wendiiiom exponas. It was so denominated in Kane v. McCown, 55 Mo. 196; and in Wood o. Augustine, 61 Mo. Li Webb v. Armstrong, 5 Humph. 879, it was held that a writ of venditioni exponas was an execution within the meaning of the statutes authorizing motions against sheriffs for failure to return executions. It is an execution or writ to satisfy the judgment on behalf of the plaintiff. It is sometimes spoken of as a branch of the writ of fieri facias, and it may contain a fieri facias clause. Ereeman on Ex., Sec. 57. The effect of a sale under it is the same as though the sale had been made under the original writ before return day. The lien and levy of the original writ continue under the venditioni exponas. Freeman on Ex., Sec. 60. The venditioni exponas when issued relates to, and, as it were, identifies and incorporates itself with the previous execution and levy. Taylor v. Mumford, 3 Humph. 67.

It is especially urged, as a- reason why this act does not apply to the writ in question, that the first section, in so far as it is applicable to writs of venditioni exponas, relates only to such writs issued after the passage of the act, and in pursuance of the provisions thereof, and that the second and third sections relate only to writs which require a levy to be made. It is too plain for argument, we think, that when the third section speaks of executions “that may hereafter be issued,” it contemplates and includes the “ renewal executions ” provided for in the first section, that is, writs of venditioni exponas with a fieri facias clause, as well as the ordinary writs of fieri facias. This act certainly intends to keep alive until they could be satisfied the executions which it required the clerks to issue, and yet, under the construction contended for by the plaintiff, such executions would not come within the terms of the third section. Eor, by the terms of the act, no levy is 'to be made under such writs, unless the former levy should be deemed insufficient to satisfy the execution, and they would not therefore be continued in force until a sale could be made, in the event it should be unnecessary to make an additional levy thereunder. Such a construction would manifestly defeat the obvious purposes of the act. Now it is evident to us that the words “executions now issued,” in the third section, are intended to cover and include evei’y species of execution which said section contemplates, “ may hereafter be issued,” and these words would, therefore, include executions under which no levy need be made, for such executions, with or without a fieri facias clause, might have issued before the passage of the act. That is to say, if the section covers executions issued after the passage of the act under which no levy can be made, it will equally cover executions issued before the passage of the act under which no levy can be made, whether they contain a fi. fa. clause or not, for as to both elasses, those issued before and those issued after the passage of the act, the words “ shall be levied on real estate,” are applied by the statute. We are of opinion, therefore, that any execution issued from a court of record in one county to the sheriff of another county, under which real property might be sold, whether the levy was made under such execution or under some other writ which it supplemented or succeeded, comes within the provisions of the third section. Any other construction would be entirely too narnow and too technical, and would, in many instances, wholly thwart the highly beneficent purposes of the act. This court has at all times been disposed to put a liberal interpretation upon the provisions of this act, and to make the grammatical construction thereof yield to the obvious intent of the Legislature. Wood v. Messerly et al., 46 Mo. 255. It would seem to us strange indeed, if it were true, that while the Legislature had provided that all'executions issued before the passage of the act, and not satisfied either in whole or in part, and all liens which had accrued thereunder, should continue in full force until satisfied, and that an execution venditioni exponas issued the day after the passage of the act, based on executions previously levied and returned not satisfied, should also continue in force until satisfied; that a venditioni exponas issued the day before the act passed, on an execution levied and returned not satisfied, should not be continued. We are of opinion that the writ in question was continued in force by the act of March 23,1863, and that the sale made thereunder' was valid.

5. >t.t« ji. jA. no previpusmeníeyyf when:

Authorities have been cited from other states to sustain the fourth point, but we.-do not coBceive them to be alto-ge^ier applicable to the case at bar. In Yarborough v. State Bank 2 Dev. 23, it was held that a levy'made and returned is waived by taking out an alias ji. fa.: and that a venditioni exponas with an alias fi. fa. clause, is the proper writ to keep up the lien created by the levy, when an additional levy is desired. But it was competent under our -statute for the judgment creditor to have several executions issued to different counties at the same time, and the alias execution, which it is claimed in this cáse operated as an abandonment of the levy, was issued to the sheriff of Howard county, and not to the sheriff of Jackson county, where the levy was made. No venditioni exponas could have issuefi to the sheriff of Howard county on the levy made in Jackson, and no alias fi. fa. was issued to Jackson county. The judgment will therefore be reversed and the case remanded.

The other judges concur.

Reversed.