Dunham v. Wilfong

Hough, J. This was an action of ejectment. The land sued for was sold in partition, to Chas. 0. Jones, who gave his notes for the purchase money, with Peter H. Stone, as security, payable to Wesley McClure, sheriff of Pettis county, or his successor in office. H. J. McCormick, his successor in office, brought suit on said notes, against said Stone and Jones, alleging that said notes represented the purchase money of the land in suit, that a vendor's lien existed in his favor therefor, and asking for the enforcement of said lien. Judgment, by default, was rendered for the enforcement of a vendor’s lien, and, by virtue of a special execution, issued thereunder, the land in controversy, was sold to the plaintiff, Dunham, to whom the sheriff executed a deed conveying “ all the right, title, interest,. claim, estate and property of them, the said C. 0. Jones and P. H. Stone, of, in and to the above mentioned [357] and described property that I might sell as sheriff as aforesaid, by virtue of the aforesaid execution and advertisement.” This deed was properly acknowledged May 4th, 1866, and recorded May 7th, 1866. It is agreed that it-does not anywhere appear of record that thfe court ever ordered II. J. McCormick to institute suit for the collection of the notes, or to enforce a vendor’s lien, or that it ever ordered Sheriff McClure to transfer said notes, or any of them, to his successor in office.' The return of service of process, made by the sheriff in the suit brought by McCormick, is as follows : “ I do hereby certify that I executed the within petition and alias writ of summons by delivering a true copy of the same to Peter II. Stone, and also an alias summons to Charles 0. Jones, he.being next and last served. All in Pettis county, Missouri, January 30th, 1864. J. Hubbard, sheriff Pettis county, by, J. Montgomery, deputy sheriff.” The title is conceded to have been in the parties to this partition suit, and. the only question is, whether, under the foregoing proceedings to enforce a vendor’s lien, said title was acquired by the plaintiff'. It is contended, by the defendant, that C. 0. Jones was not legally served with process; that the court, therefore, acquired no jurisdiction over him, and, as he did not appear to the action, the judgment against him was a nullity. i sheriff’s reTDEN- The return is informal in.no.t stating that a copy of the alias writ of summons was delivered to the defendant, J°nes. The return shows that Jones was personally served with an “ alias summons,” and as the statutory reason for serving him with the summons alone, without the petition, is found in the language of the return that he was “ next and last served,” it is rendered certain to a common intent that the writ delivered to Jones was a counterpart of the one delivered to Stone. It is impossible, therefore, that Jones could have been served with an alias summons in that case, without having been served with a copy, as the original was returned. [358] 2 _. judg. ment- Besides, it is recited in the judgment that both defendants were legally served, and such recital is conclusive upon the parties in a collateral proceeding. Freeman on Judgs., § 130, and cases cited; Rumfelt v. O’Brien, 57 Mo. 570. s _. amend. ment‘ Moreover, after the submission of this cause, and before its decision, the court permitted the officer so to amend his return as to show a service, which is unquestionably good, and though the amendment was objected to by the defendant, he did not appeal from that ruling of the court, and the amendment, so made, is, therefore, conclusive, as to the question of jurisdiction over the defendant, Jones. 4. judgment not COLLATERALLY ASsailable. It is also contended that McCormick had no right to bring suit on the notes; that the sale in partition having been made by Sheriff McClure, in the ab-_ , „ - . sence of an order transferring the business to his successor in office, he, alone, had authority to collect the notes and make a deed to the purchaser. The judgment of the court, on this question, is not open to collateral attack; and its decree declaring and enforcing a vendor’s lien'for the purchase money of the land in partition, is equally conclusive. Having declared the lien, and proceeded to enforce it by a sale of the land, the whole title passed to the purchaser at such sale, and can never be asserted by the parties to the partition suit, who were represented by the sheriff in the foreclosure suit, nor by any one claiming under them, having notice of such sale. This was expressly decided in the case of Winston v. Affalter, 49 Mo. 263, and an examination of the transcript in that cause discloses the fact that the granting clause of the sheriff’s deed, thus passed upon, is identical -with that contained in the deed to the plaintiff in this suit. To those not having actual notice of such proceedings, the deed to Dunham affords constructive notice from the time it was recorded. We are of opinion, therefore, that the judg [359] ment of the circuit court should be reversed and the cause remanded. All concur. Reversed.