Wood v. Messerly

Bliss, Judge,

delivered tbe opinion of tbe court.

The plaintiff brings ejectment, and derives title by deed from one K. H. Wood, and defendants bold possession as purchasers upon execution against him. The plaintiff seeks to defeat defendants’ title ¿through the execution for the reason, as be claims, that it was fundus officio at the time of the sale. It appears that it was issued in March, 1862, returnable at the next September term ; that the property was duly levied upon and advertised for salo at said September term, but the court adjourned before the day of sale. A sale being thus rendered impossible, “without fault of the officer,” the execution was continued in force by the provisions of section 54, chapter 63, page 748, of the revision of 1855, which provides that where a sale can not be made at the first term in which it is to be made, it shall be continued to the end of the second term; so that, for the purposes of sale, this execution was kept alive until the end of the March term, 1863. . But the record shows that no March term was held, and the sale ivas not actually made until the September term, 1863. This the plaintiff contends was altogether too late; the execution was dead, and, without a venditioni exponas, the sale could not be made, and was a nullity.

*257 The defendants would sustain the. sale by the provisions of two different acts. First, they rely upon section. 56 of chapter 47, page 541, of the revision, of .1855, which provides that no writ, process, etc., shall he deemed discontinued or abated by reason of the failure, of any term..of court, etc., hut that the same shall be continued, etc. ; and Judge Scott, in The Bank v. Wells, 12 Mo. 361 , seems to give this effect to the act, though it is not quite certain- whether the execution is sustained in that case by this act or by another one cited, or by both together. .

The other act .upon which the defendants in the case at bar rely is that of- March 23, 1863, which provides,.first, for. the revival of dormant executions, and second, “that those now issued, or that may hereafter be issued, and levied upon real estate, if- it shall not be sold at the next term from which the -execution has been or may be issued, the execution and lien shall continue until a term of court when it can be sold.” This statute has been fully considered by this court in Stewart v. Severance, 43 Mo. 322 , and in McDonald v. Gronefeld, 45 Mo. 28 , and full effect is given to all its beneficent. provisions. The only question now to bo considered is whether they apply to executions like the one under consideration, and of this I have no doubt. The second section provides-, first, for executions already issued and levied, or to be issued and levied. .This execution had been issued,-was still alive, and the. levy had been made. It provides also for cases where the real estate shall -not be sold at. the next term from which it has been issued. In this case the real-estate was not sold for the reason before given. It provides that the execution and the lien should continue until a term when it can be sold, which in this case -was the September term following. The only possible objection to this construction arises from a mere verbal criticism upon the tense of the term “ shall not be sold,” etc., seeking to make the provision apply only to cases where the failure to sell shall arise after the passage of the act. - This is seeking to subject the object and spirit of the act to the letter. But this verbal criticism will>.not stands for-it is evident- that the future tense, “ shall not be sold-at the next term,” etc., has reference not to the date of the act, but to the date of the execution.

*258 If there were any doubt whatever as to the effect of section 2 of the act, it is removed by the'clear provisions of section 1, which revives “ all executions heretofore issued and not satisfied.” This act'.of 1868, then, going into effect a few. days before the expiration of the execution, extends it and the lien o£ the levy until the sale in September following. No venditioni exponas or new execution was necessary unless the old one had been returned, and the claim of the plaintiff in this regard is without foundation.

The plaintiff also complains of some of the declarations of law by the court, and that its finding did hot conform to others. But it is of no consequence what these declarations were. The material facts are undisputed, and, as matter of law, they vest the title in the defendants.

The judgment, therefore, of the court was correct, and is affirmed.

The other judges concur.