Thornton v. Miskimmon

Bliss, Judge, delivered the opinion of the court. In 1865 the defendant purchased at sheriff’s sale certain real estate in the town of Clinton, upon four executions against one John G. Thornton. He paid a full consideration, took possession, and made improvements ; but the sheriff’s deed defectively described the judgments and executions, and the returns were imperfect. In August, 1867, an execution was issued upon another judgment against said John G. Thornton, and in .October following the same property was bid in by the plaintiff for a nominal [222] consideration; and this suit is brought to recover possession. Pending the suit, the sheriff was permitted to amend his return and make a new deed, which was set out in an amended answer as the foundation of defendant’s title; the new deed was admitted in evidence, and defendant recovered judgment. The points necessary to be considered go to the' admissibility of this deed, and to its effect upon the rights of the plaintiff; for, as the record is made up, we need not consider the sufficiency of the first deed, with its defective recitals, to pass the title. First, when a sheriff discovers errors in his return, it is his duty, upon leave, to amend it so as to conform to the facts (Alexander, etc., v. Merry, 9 Mo. 514 ; Crowley v. Wallace, 12 Mo. 143); and if he has not executed a proper deed, he should make another, which will ordinarily relate back to the sale. When the first deed is defective, I infer the right to make an amended one, from the duty of the sheriff to correct an imperfect or false return, and especially from his duty to make a perfect deed when the facts will warrant him in so doing. The latter, it is true, is seldom necessary ; for if there be a valid judgment, execution and sale, the deed must be very defective not to operate as a transfer of title. If a new deed is to be made, a motion to set aside the former one would be regular (Bay v. Gilliland, 1 Cow. 220); for it would seem that when a statutory power is once exercised, the record shows on the part of the officer a full performance of his duty, and there is apparently nothing further for him to do. (Jackson v. Stryker, 1 Johns. Cas. 284.) Its improper exercise will not, however, excuse him from such performance ; and although it would be proper for the court, in its control over the proceedings of its officers, before a new deed is made, to set aside an irregular or imperfect one, that confusion might not arise from the two conveyances, yet the last and correct deed is not void, and it cannot be impeached in this proceeding. The plaintiff, however, claims that notwithstanding a second conveyance may be good, and will ordinarily relate back to the sale, yet it will not do so as against the rights of intervening third parties, and that he, as a purchaser before the execution of the last deed, cannot be affected by it. Upon this subject the court [223] held, at the plaintiff’s instance, that the second deed did not so relate back to the sale as to give the defendant the better title, unless the plaintiff when he purchased had either actual notice of the facts recited in said deed, or notice that there existed of record such proceedings as would have advised him of them. But the court refused to declare that the first deed and the first return of the sheriff were no notice, and for the reason, first, that such deed and return only constituted a part of the record, and that when the whole was sufficient notice, the court should not be called upon to give the effect of this or that part of it; and for the further reason that there was enough in the judgments, executions, returns and deed, to advise the plaintiff of the sale to defendant. In order to understand the views of the court below upon this point, its refusal to give this instruction should be considered in connection with one given at the instance of defendant, to the effect that if there was a valid sale and a deed to defendant regularly executed, acknowledged and recorded, under which he took and held possession, of which the plaintiff was informed before his purchase, and that plaintiff was told that defendant’s title was defective, and purchased in consequence of such supposed defect, then he is not an innocent purchaser, and defendant’s title under the last deed relates back to the sale. The view of the court was correct. The defendant was a neighbor of the plaintiff; was in open and notorious possession of the premises under his purchase, which the plaintiff well knew; but the latter was told by his law partner that the title was defective, and in consequence bid off the property for a mere nominal sum. To say that he was a stranger, and should be protected as an innocent purchaser from the operation of the well-settled rule that the sheriff’s deed should relate back to the sale, would confound all our ideas as to what constitutes innocence either in a legal or moral sense. The whole policy of the law in regard to the protection of innocent purchasers from the operation of prior titles, is based upon naked justice. For instance, in regard to the registering of conveyances, in order to prevent fraud and imposition, certain duties are imposed upon the holder of the deed; and it is enacted, and might be justly held without enactment, that those who, in [224] the ordinary course of business, purchase without knowledge of such conveyance, and being, by neglect of the holder, deprived, of the means of information, shall not hence be made to suffer. But this policy cannot be made to cure the cases of those who would take advantage of technical defects in their neighbors’ titles to deprive them of their estates. If those defects cannot be cured, they may perhaps succeed; but if any steps can be taken that, by the rules of law, shall relate back and remedy the defect, no exception to the operation of the remedy should be made in favor of such person. The other judges concurring, the judgment will be affirmed.