Dunnica v. Coy

Richardson, Judge, delivered the opinion of the court. It is recited, in the sheriff’s deed under which the plaintiff claims, that the execution was issued on the first day of April, 1854, directed to the sheriff of Chariton county, and delivered to Henry H. Davis, who was at that time sheriff of the county ; that Davis levied the writ on the land in controversy, but that Robertson Moore, the successor in office of Davis, advertised the land for sale, conducted the sale, and made the deed to the plaintiff. The defendant insists that the deed is void for the reason that the execution was delivered to and levied by one sheriff, and the sale was made by his successor. It does not appear how the sheriff, who first received the writ, had levied it. He did not advertise the land for sale ; and as ho was not required to make an actual or symbolical seizure of it, (Wood v. Colvin, 5 Hill, 228,) it is difficult to perceive how he had made a levy at all; and it may be inferred from the circumstances that he did nothing more than indorse on the writ that he had levied it on the land in dispute. The writ, then, was not executed within the meaning of the statute, but was in a condition that authorized the sheriff, who received it, to deliver it to his successor, as pro [528] vided by the fifty-second section of the execution law of 1845, which declares that “ whenever the term of office for which any sheriff shall have been elected has expired, or he shall have resigned or removed without the county, or be removed from office, it shall be his duty 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 writs had been originally directed to him.” The right of the plaintiff to recover upon proof of the allegations in his petition was established by the principle decided in the case of Rankin v. Harper, 23 Mo. 579; and we think the evidence was sufficient to warrant the decree. The judgment will therefore be affirmed, the other judges concurring.