Merchants' Bank of St. Louis v. Harrison

39 Mo. 433

Opinion

Holmes, Judge,

delivered the opinion of the court.

This was an action of ejectment for the possession of a tract of land lying in the county of Livingston. The petition alleged that the plaintiff was a corporation under the laws of the State. The answer denies the material allegations of the petition. Both parties claimed title under Jasper N. Bell, the common grantor. It was amply proved that Jasper N. Bell,, prior to any conveyance to eitheiv party, had had possession of the land claiming title by and for nearly ten years at least. Documentary evidence was offered by the plaintiff to show a complete chain of title from the United States to Jasper N. Bell, but one of the deeds was excluded on the ground of a defective acknowledgment. The notary public who took the acknowledgment described himself in the body of the acknowledgment as a notary public within and for the county of Livingston, but appended to his signature his official character in these words, “Notary Public Howard county.” We are inclined to think that the deed should have been admitted ; but being excluded, there was still evidence enough to show a possession of the land by one claiming title by deed, and there was sufficient prima facie evidence of title to entitle the plaintiff to recover, until a prior or better title should be shown. And further, as both parties claimed title under a common grantor, the title of the ancestor was admitted, and could not be denied in this case. “When both parties claim under the same third person, it is prima facie sufficient to prove a derivation of title from him without proving his title” — 2 Greenl. Ev. § 307.

The answer denied that the plaintiff was a corporation, and this fact was put in issue. To support this issue, the plaintiff read in evidence the act of the Legislature incorporating the bank and prescribing the mode in which it should be organized, and there was ample evidence tending to show that the bank had gone into operation under the act, and to show acts of user. The acts of user which were proved were prima facie evidence under the charter — Ang. on Corp. § 685. No evidence was offered by the defendant to the contrary. We think it was sufficiently proved that the plaintiff was a corporation.

It appeared in evidence that this land was purchased by the bank by way of securing the payment of a debt due from Jasper N. Bell amounting to about $2,400; that the land was worth some $9,500, but was subject to the prior lien of a deed of trust; and that the balance of the purchase money, amounting to about $7,000, was paid to the holder of the deed of trust to discharge this prior encumbrance, and that the land was purchased by the bank for the sole purpose of securing the payment of the debt.

It was objected that this purchase was not authorized by the charter of the bank, and that the deed was therefore null and void. There was no other prohibition on the bank from the purchase of real estate than that contained in the 26th section of the act to regulate banking institutions (Laws of 1856-7,p. 21), which provides that “each bank may hold such real estate as may be required for the convenience and accommodation of said bank and branches, and such as may be conveyed to the same in payment of debts previously contracted in good faith and without a view to the purchase thereof; and also such as may be purchased at sales upon judgments and decrees in favor of the bank, when it shall be purchased in order to secure the debt. But the bank shall as soon as practicable, under the direction of the board, dis pose of all real estate held by it which is not necessary to the transaction of its business.”

It is insisted that this purchase was made on speculation, and not necessarily to secure the payment of a debt previously contracted in good faith and without a view to the purchase thereof. The real value of the property was what it was worth over and above the prior encumbrance, and this does not appear to have been much (if any) more than the amount of the debt due the bank. We do not see that there was any ground for saying that the purchase was not made in good faith and for the purpose of securing the payment of the debt, and we think it came clearly within the power given by the charter.

The defendant claims under a sheriff’s deed, upon a sale of this land by the sheriff of the county of Livingston under a judgment and execution againt Jasper N. Bell. The deed to the plaintiff was dated and recorded on the 12th of May, 1862 ; the judgment was rendered on the 2d day of December, 1861, in the Court of Common Pleas of Buchanan county ; and the execution was issued to the sheriff of Livingston county on the 10th day of December, 1861, and was by him levied on this land in no other-way than by endorsement of the levy, with a description of the property, on the execution in his office, on the 20th day of December following. Before proceeding further with the levy, the sheriff, in May, 1862, resigned his office and turned over his unexecuted process, this execution included, to the coroner of the county. The coroner proceeded to make other levies under the execution on other property, both real and personal, and made return thereon of his execution of these levies. It further appears by a return made subsequently on the same execution, that it had somehow come again into the hands of the former sheriff, who endorsed a return thereon that he had on the 9th day of July, 1863, sold the lands described in the accompanying levy, at the courthouse door of Livingston county, to the Bank of the State of Missouri, for the sum of twelve dollars and fifty cents. This return does not state that the sale was made during tbe session of any court. It is insisted by the defendants that the sheriff, having made his endorsement of a levy before his resignation, had power and authority under the statute to go on and complete the levy, by an advertisement and sale, after his resignation, and notwithstanding that he had turned over the writ unex-ecuted to the coroner, his successor in office- for the time being. The statute provides that it shall be the duty of a sheriff who has resigned “ to deliver over all writs of execution not executed to such person as may have been elected or appointed and qualified to discharge the duties of sheriff, and such new sheriff shall receive all such writs, and proceed to execute the same in the same manner as if such writ had been originally addressed to him”; and “when the office of sheriff shall be vacant by death or otherwise, the coroner of the county is authorized to perform all the duties which are required by law to be performed by the sheriff, until another sheriff for such county sh^ll be appointed and qualified” — R. C. 1855, p. 368, § 3, & p. 749, § 59. In the case of Dunnica v. Coy, 28 Mo. 525, the sheriff who first received the writ had merely endorsed a levy on the execution in his office, but had not advertised the land for sale: the court said it was “ difficult to perceive how he had made a levy at all”; and it was expressly held that the writ was not executed within the meaning of the statute, but was in a condition that authorized the sheriff who received it to deliver it over to his successor, to be executed by him under the provisions of the statute above cited. This execution was actually delivered over to the coroner as unexecuted, and he was bound to proceed and execute the writ himself. He might have adopted the levy so far as made by the former sheriff. In Duncan v. Matney, 29 Mo. 368, where the former sheriff had not only endorsed a levy, but advertised the property, before turning over the writ to his successor, it was held that the successor was bound to adopt the acts of his predecessor, without incurring the expense of a new levy and advertisement, unless satisfied that they were illegal and irregular. And in the case of Carr v. Youse, ante p. 346, where a new sheriff had been appointed, it was held to be entirely proper for the coroner to deliver over his unexecuted process to the new sheriff, and that it was legal and proper for the sheriff to complete the execution of it. It is very probable that the sheriff might have had power under the 62d sec. of the “Act concerning executions” to proceed and complete a levy which had actually been made by him, by making a sale and deed of the property. But in thus determining the question, whether a valid levy had been made here, it is sufficient, we think, that the execution had been actually handed over to his successor, whereby his power over the execution and his whole function as sheriff had ceased and come to an end ; he no longer had any authority to act in the matter, and his subsequent proceedings, the sale, and the sheriff’s deed, must be held to have been null and void.

These points settle the merits of the case and dispose of all the instructions but one. Tlie^court gave one instruction for the plaintiff to the effect that to maintain the defendants’ title under their sheriff’s deed, it was necessary for them to show both the judgment and execution to authorize the execution of a deed. It was decided by this court, at the last October term, that the sheriff’s deed and the recitals therein contained, as required by the statute, were prima facie evidence of the existence of a judgment without producing a certified transcript of the record thereof, and on the authority of this decision it would be held that this instruction was erroneous. But inasmuch as the sale and the sheriff’s deed were void and wholly ineffectual to convey any title for the reasons above given, it cannot be said that the defendants suffered any prejudice by this error, and it would be of no avail to them to have a reversal of the judgment on this ground.

The judgment being for the right party, and there being no errors of which the defendants have a right to complain, it will be affirmed.

The other judges concur.