Waddell v. Williams

Bliss, Judge, delivered the opinion of the court. The plaintiffs bring ejectment, and derive title from one Dickson, through a mortgage executed November 18, 1863, and a sheriff’s deed to them of October 4, 1869, given upon sale under a foreclosure of the mortgage. Defendant also derives title from Dickson, through a sheriff’s sale upon execution against him. The judgment satisfied by the execution was originally recovered before a justice of the peace in July, 1862; a transcript was filed in the Circuit Court on the 2d of February, 1863. An execution directed to a constable having been returned nulla bona, one was issued to the sheriff on the first of October, 1863, under which the land was sold and deeded by the sheriff, and through subsequent sales it finally came into the hands of the defendant. [219] The cause was submitted to the court, which found for the plaintiff and gave him judgment. No declarations of law were asked, but the defendant asked for a new trial, mainly upon the ground that the finding was against the law and the evidence; and the motion being overruled, he appealed. The finding and judgment of the court were erroneous. The lien of the judgment against Dickson dates from the 2d of February, 1863, and the sale under the execution issued upon it passed a perfect title. (Gen. Stat. 1865, ch. 183, §§ 13, 14; Wagn. Stat. 839; Bunding v. Miller, 10 Mo. 445.) There is no evidence to invalidate this sale, and the proceedings upon which it was founded were regular, and quite as formal as we usually find them. Counsel claim that under our practice we should not look into the evidence, but that upon the facts the finding of the trial court should be taken as correct. The rule is that controverted facts, especially when the evidence is contradictory, will be considered, in actions triable by jury, as correctly found in the trial court. But when documents or records are submitted in evidence, their legal effect is matter of law. The legal effect of the filing and record in the Circuit Court of the judgment against Dickson, with the subsequent proceedings thereon, was to pass the title out of him into the defendant’s grantors; and a finding that the title still remained in Dickson and passed to the plaintiffs, through a mortgage executed after the date of the judgment lien, is contrary to law and evidence. The evidence of title is on paper, and the court committed error in misjudging its legal effect. The consideration expressed in defendant’s deed shows that he purchased at a high price. The land is doubtless valuable, yet the -plaintiffs bid it in for $5, being notified at the time that the title was in others. They are entitled to no special consideration, and the judgment will be reversed and judgment entered against them in this court. The other judges concur. Alexander & Childs, with Wallace & Mitchell, for respondents. To attempt to review this case would be to express the opinion of the appellate court simply upon the weight of evidence. And in the majority of these cases, where this doctrine has been so forcibly laid down by this court, the trial was by the lower court, sitting as a jury, and the evidence documentary. The decision in this cause is in direct conflict with and a contradiction of the opinion of this court, delivered, by Judge Wagner, in the case of Weilandy et al. v. Lemuel, 47 Mo. 822. (See also Taylor v. Russell, 8 Mo. 701; Little v. Nelson, 8 Mo. 709 ; Kurlbaum v. Roepke, 27 Mo. 161; Easly v. Elliott, 43 Mo. 289; McEvoy v. Lane, 9 Mo. 48 ; Wilson v. North Mo. R.R. Co., 46 Mo. 36.) The decision in this case is contrary to the terms of an express statute. Section 17 of article vn, chapter 90, p. 961, R. C. 1855, provides that no execution shall be sued out of the court where the transcript is filed, if the defendant is a resident of the county, until an execution shall have been issued by the justice, directed to the constable of the township in which the defendant resides, and returned that the defendant had no goods and chattels whereof to levy the same. No pretense is made by appellant that this was done. The justice’s docket and transcript shows the contrary. The execution under which the land was sold to appellant’s grantor shows the contrary. The sale of land under an execution is a sale in invitum, and if the power to sell-does not exist no title passes. (See Thatcher v. Powell, 6 Wheat. 119.) The decision in this cause, that the proceedings in enforcing the lien of the transcript, without a compliance with the law, “are quite as regular as we usually find them,” and divested Dickson of his title to the land, in effect decides that the positive requirements of an express statute may be dispensed with, and that he was deprived of his title without observing the law of land, by the acts of ministerial officers, which is in conflict with the former decisions of this court. (Coonce v. Munday, 3 Mo. 373 ; Burk et al. v. Elournoy, 4 Mo. 116; Carr v. Youse, 39 Mo. 346 ; id. 43 Mo. 28 ; Tanner v. Stine, 18 Mo. 580.)