Illingworth & Clark v. Miltenberger

McBride, J., delivered the opinion of the Court. The first question which we are called upon to decide is as to the validity of the sheriff’s sale and deed, under an execution which issued from the clerk’s office of the Circuit Court, on a transcript of a judgment [85] obtained before a justice of the peace, in favor of Meara & Yates against Abraham Allen. It appears from the evidence that Meara & Yates, on the 13th August, 1845, filed their lien in the clerk’s office of the Circuit Court, in which they alledged that Abraham Allen was justly indebted to them in the sum of $48, for labor done and materials furnished in the erection of a house on a lot, (describing the house and lot) and on the same day they commenced an action before a justice of the peace against Allen, who came forward and confessed judgment in their favor, for the above sum. Thereupon they filed a transcript of their judgment, thus obtained in the clerk’s office, and on the next day they gave notice to Anthony Miltenberger of their intention to enforce their lien against the property which was then in his possession. On the 18th August, the clerk issued a special fieri facias, containing the usual recitals, and commanding the sheriff to make the debt, &c., out of the premises described. The sheriff made sale under the writ, and Illingworth and Clark became the purchasers. The objection is, that prior to the emanation of the execution from the clerk’s office, no execution had been issued by the justice of the peace and returned, “nulla bona.” This proceeding was had under an act entitled, “An act for the better security of Mechanics and others erecting buildings or furnishing materials for the same in the City and County of St. Louis;” Session acts 1842-3, p. 83. Tiic seventh section provides, that when the demand does not exceed $90, suit may be commenced before a justice of the peace, and if judgment be had, a transcript may be filed with the clerk, “who shall thereupon issue an execution, if required, as in ordinary cases, and the sheriff shall immediately proceed to sell the same as other property on executions are sold.” Reliance is placed on the words, “as in ordinary cases,” to show that the issuing of an execution by the clerk, is to be governed by the general law,' which requires an execution first to be issued by the justice and returned “nulla bonar> before the clerk is authorized to' issue one from his office, on a transcript. This is most obviously a mistake. The words in their connection, refer to the manner of issuing executions on judgments obtained in the Circuit Court, to enforce liens. How is the-Hen to be enforced by an execution from, a justice’s office ? The law is not treating of other remedies which the plaintiffhas to satisfy his claim, but prescribing the manner of proceeding to enforce the remedy given by the act itself. It is objected that the lien having been filed on the same day that the judgment vías confessed, it must be presumed to have been filed after the [86] judgment, and therefore irregular and void. From the fact, the presumption is equally strong, that the lien was filed before the judgment, and where they are equal, that conclusion should be adopted which^will give force and effect to the law. It appears from a statement in the sheriff’s deed made by virtue of a sale under an execution issued on a judgment of the Circuit Court in favor of Illingworth and Clark, and against Allen and Miltenberger, that he advertised the premises in controversy for sale on the 22d January, 1846, and that he sold the same, and James Clark became the purchaser at the sum of $605. That a deed was executed and presented by him to Clark who refused to pay the amount bid, and thereupon the sheriff without giving any other notice proceeded on the 23d of February thereafter, at the usual hour and place for making sales of real estate, under execution, to re-sell the premises, when Illingworth and Clark became the purchasers for the sum of $400. It is insisted that the second sale made by the sheriff is void inasmuch as it was made without the previous notice of twenty days, as required by the 40th sec. of the act to regulate executions, K. C., 1845, p. 483. The first sale was made under and in conformity to the provisions of this section; but the second sale was made under the 42d sec. of the same act, which authorizes the officer, in event of the first purchaser refusing to comply with the terms of the sale, to again sell the property, at any time, to the'highest bidder, and if any loss is occasioned therebjq the officer shall recover the amount of such loss, with costs, by motion before any court, or before any justice of the peace, if the sum shall not exceed his jurisdiction. This court has decided, at the present term in the case of Conway vs. Nolie, that a re-sale may be made under this latter section without, the officer again giving notice. The only remaining question which we shall notice is that connected with the forfeiture of the lease by Miltenberger, who held the premises by a transfer from Allen with the assent of Darby, the agent of Bass. It appears that the premises in dispute were leased by Darby the agent of Bass, to Allen for a term of years, at a quarterly rent of $25, payable on the 15th February, May, August and November. It is stipulated in the deed, “that if either of the payment of rents as aforesaid, shall become duo and shall remain in arrear for the space of ten days, then this lease shall become forfeited by such delay and shall be forever ended, without any demand of rent being made by the said party of the first part, Jais representatives or assigns. And the said party of the first part may [87] ■enter into and.take possession of said premises after said tea days sha’L have elapsed as though this lease had not been made.'-” There is another clause, declaring that any leasing, transferring or other disposition of the premises without the written permission of the lessor, shall forfeit the lease. On the 31st May, 1845, Allen with the'consent of the agent of Bass, assigned the lease to Miltenberger, who went into the possession and paid irent up to the 15th February, 1846 .The rent for the next quarter, ending 15th May, not having been paid by Miltenberger, for the space often* •days after falling due, the agent declared, by an endorsement on the lease on the 25th May, that the said lease was forfeited. Afterwards, the agent reletthe premises to Miltenberger, at an advance rent, Before the falling due of the quarter’s rent in May, to-wit: in March or April, Illingworth tendered payment to the agent, who refused to receive If, unless made in the name of Miltenberger. The agent refused to recognize Illingworth and Clark as tenants. Illingworth again called in September of the same year, and at other periods and tendered payment of rent, but the agent still refused to accept it, and informed him that he had declared the lease forfeited. The tender of payment before due, is not a sufficient legal tender, therefore in strictness the agent was not hound to receive the rent from Illingworth in March or April which was not due until the 15th May; I Saunders R., 38?, note 16. . There is no evidence that the tender was made on the 15th May, or at any time within ten days; consequently, under the provisions of the lease, Darby had a right to declare it forfeited* This he did on the 25th May. The other applications on the part of Illingworth, to pay the rent, could avail him nothing, inasmuch as a forfeiture had been declared. If he had desired to succeed to the rights of Allen, under the lease, and prevent a forfeiture, he should have made his tender on the day the rent fell due, or within ten days thereafter. It not having been so paid and a forfeiture declared, the consequence was that Allen and all those claiming under him, were divested of title, and the estate reverted to Bass. The title having again returned to Bass, the agent relet the premises to Miltenberger for an advanced rent. Under this view of the subject, the plaintiffs cannot recover. The judgment of the Circuit Court ought to be affirmed, and the other judges concurring, the judgment is affirmed.