Jones v. Mack

Adams, Judge, delivered the opinion of the court. This was an ejectment for a quarter section of land in Johnson county. The plaintiff showed a clear paper title. The defendant set up a sheriff’s sale and deed under a mortgage, which had been given by the plaintiff to the county of Johnson to secure a debt due for school funds. The mortgage was in the form prescribed by the 22nd section of the 2nd article of the act entitled, “ an act to provide for the organization, support and government of common schools in the State of Missouri, approved Dec., 12, 1855,” which provides, that “ every mortgage, taken under the provisions of this act, shall be in the ordinary form of a conveyance in fee, shall recite the bond, and shall contain a condition, that if default shall be made in the payment of the principal or interest, or any part thereof, at the times when they shall severally become due and payable according to the tenor and effect of the bond recited, the sheriff of the county may, without any suit on the mortgage, proceed and sell the mortgaged premises, or any part thereof, to satisfy the principal and interest, and to make an absolute conveyance thereof in fee to the purchaser; which shall be effectual to all intents and purposes as if such sale and coneyance were made by virtue of a judgment of a court of competent jurisdiction foreclosing the mortgage.” (See Eev. Stat. 1855, p. 1224.) On the 21st day of May, 1865, the County Court of Johnson county made the following order, which was relied on as authorizing the sheriff to proceed and sell the land. [150] “ Johnson county ) vs. > Mortgage order of sale. Albert Jones ) Ordered by the court, that the County Attorney proceed and close the mortgage in the above entitled cause by selling the whole, or so much of the real estate therein mentioned as will be sufficient to pay the demands of said plaintiff.” The sheriff afterwards sold the land, and made the deed under which the defendant claims, and the mortgage was entered satisfied by virtue of the sale. This is in substance the defendant’s case as made by the (evidence. The court decided, that this evidence was sufficient to defeat the plaintiff’s right of recovery, and made formal declarations of law to that effect, and the plaintiff took a non-suit with leave to move to set the same aside, and did file a motion to set aside the non-suit, which was overruled, and exceptions duly saved. The school law vests in the County Courts the care and management of the school funds of the respective townships within their jurisdiction. (2nd Rev. Stat. 1855, § 15, p. 1422.) The County Courts have the whole control of these funds, and have the care and custody of the bonds and mortgages given to secure loans. The sheriff has no control, whatever, over the school funds, and has no power to act on his own motion in the foreclosure of mortgages. He can only act in obedience to the orders of the County Court. Section 30 of the 2nd article of the act above referred to (2nd Rev. Laws, 1855, p. 1422,) provides that, “ whenever the principal and'interest or my part thereof, secured by a mortgage containing a power to sell, shall become due and payable, the County Court may make an order to the sheriff, reciting the debt and interest to be recovered, and commanding him to levy the same with costs of the mortgaged premises, which shall be described as in the mortgage ; and a copy of such order duly certified, being delivered to the sheriff, shall have the effect of a fieri facias on a judgment of foreclosure by the Circuit Court, and shall be proceeded on accordingly.” [151] This section provides the only summary method of foreclosing mortgages by the County Court. The order of sale must substantially comply with its provisions, otherwise the proceeding would be irregular, and a sale under it would not amount to a foreclosure. It is very manifest that the order of sale, under which the sheriff acted in this case, did not comply with the statute, and was no authority for foreclosing, the mortgage. Still the sale was made, and the debt of the county due from the plaintiff for the school funds was satisfied by the money of the defendant. Under this purchase the defendant took possession of the land, and he certainly has the right, under these circumstances, to protect his possession by setting up this mortgage. A mortgage conveys the legal title, and after forfeiture the mortgagee, or those holding under him by foreclosure or color of title, may enter into the possession and hold it against the mortgagor. (Jackson vs. Magruder, 51 Mo., 55.) Although the sale by the sheriff did not amount to a foreclosure, yet as it resulted in the payment of the school debt due from the plaintiff, the defendant by his purchase became substituted to the rights of the county as mortgagee. The plaintiff as mortgagor may still redeem the land. But he can not maintain ejectment against the defendant, who is thus in possession as assignee of the mortgage. Under any view that we can take, the judgment was for the right party. Judgment affirmed. Judges "Wagner and Napton concur in the result. Judges Tories and Sherwood dissent.