Ray v. Stobbs

28 Mo. 35

• Court: Supreme Court of Missouri
• Decided: January 15, 1859
• Status: Published

Opinion

Soott, Judge,

delivered the opinion of the court.

We do not consider that the principle of the case of Hobein v. Murphy, 20 Mo. 447 — that a fair purchaser vho had paid the price and received a conveyance could not be affected by a failure of the plaintiff in an execution to cause notice to be served on the defendant in the execution, who was a nonresident of the county in which the land sought to be sold is situated — is applicable to the proceeding before us. (R. 0. 1855, tit. Execution, § 46.) That was an original petition to set aside a sale after the transaction was completed. Here the party comes in on the return day of the execution and moves the court to set aside the proceedings of the officer for irregularity on the part of the plaintiff in the execution. It is the undoubted duty of every court to see that its process is not abused and perverted to the oppression of individuals. At the return day of process courts will see that it has not been executed in an illegal or oppressive way, and will give summary redress. Every one taking title under the process of a court must be understood as taking subject to the approval by the court of the proceedings had under it. It does not appear when the sheriff executed a deed, but although the sale was made in another county and before the return day of the execution, yet the deed need not have been made until after the return day of the execution, and the making of it before could not take away the right of the defendant.

Judgment reversed and cause remanded ;

Judge Richardson concurs. Judge Napton absent.