BUCHANAN CO. MO
COURT RECORDS
 

"Reports of cases determined in the Supreme Court of the state of Missouri" by Samuel A. Bennett, Reporter, Vol.3; ("Missouri Reports") Vol.18, pgs.403 to 405 (California State Law Library, Sacramento, 1/2004)
      DUNCAN'S Administrator, Respondent, vs. FISHER, Appellant; Supreme Court of Missouri, Jefferson City, 18 Mo. 403; July, 1853, Decided.
      Appeal from Buchanan Circuit Court.
      GAMBLE, JUDGE, delivered the opinion of the court. Duncan, in his petition, charges that he left certain articles of personal property with the defendant, Fisher, at St. Joseph, which the defendant undertook, for a consideration, to keep safely, "and forward in a safe and careful manner, without unnecessary delay, to the mouth of Big Tarkio, in Holt county." The default of the defendant is thus charged in the petition: "The defendant, after he had received the goods, failed and refused to forward them to the mouth of Big Tarkio, or to any other place where he could have sent them to plaintiff, but, on the contrary thereof, defendant has retained said goods and chattels, and has utterly refused to deliver the same to the plaintiff, although demanded; but plaintiff says that the defendant has converted said goods and chattels to his own use, and still refuses to deliver the same to the plaintiff, or otherwise account for the same." The defendant, in his answer, alleges, that he forwarded the goods, and denies the conversion of them to his use.
      After the evidence was closed at the trial, the court instructed the jury, "that if the plaintiff left the goods with the defendant, and the defendant agreed to keep them and forward them to the plaintiff, and received pay therefor, and that the goods were afterwards lost to the plaintiff by the neglect of the defendant, the jury should find for the plaintiff the value of the articles so lost."
      1. The case made in the petition is clearly a case of trover and conversion. A bailee, whose duty it was to forward the goods, is charged with a failure to forward them, keeping them in his possession, refusing to deliver them, and converting them to his own use. The jury are told that, upon such a petition, the plaintiff is entitled to their verdict, if he placed the goods in the hands of the defendant to be forwarded, and they were lost by the negligence of the defendant. The instruction thus given puts before the jury a different case from that made in the petition. The change made in our practice does not relieve the parties from the necessity of establishing, by evidence, the case made in their respective pleadings, or authorize a verdict on evidence, which shows a different right of recovery.
      The code provides for amendments at the trial, in order to conform the pleadings to the facts as developed in the evidence, but before the verdict is given for a plaintiff, his petition must state the cause of action which the evidence sustains. If the court, by an instruction, directs a finding in his favor upon a cause of action different from that stated in the petition, such instruction is erroneous.
      An action of trover would not lie against the present defendant for a loss by negligence. The remedy must be by action on the case or assumpsit. The plaintiff has chosen to put his right to recover upon a conversion of the goods by the defendant, and has not pretended, in his petition, that they were lost by the negligence of the defendant.
      It has been repeatedly decided by this court, that the plaintiff must recover upon the case made in his petition, and this rule is in conflict with the instruction given in the present case.
      The judgment is, with the concurrence of the other judges, reversed, and the cause remanded.
      (MAD: from the Missouri Supreme Court Historical Database http://www.sos.state.mo.us/archives/judiciary/supremecourt/
            Supreme Court Case Files; Contributor Appellant Joseph Fisher, Respondent/Deceased Elijah Duncan, Respondent/Administrator Jesse Isgrig, filed 1853, Buchanan Co., Civil proceeding, reversed, trover, Duncan's estate recover under assumpsit not trover for lost household goods; Fisher failed to transport wares and foodstuffs to Holt Co.; Identifier Old Box Number 64, Old Folder Number 9, Location 16A/5/9, Box 192, Folder 10; Courtesy of the Missouri State Archives.)
 

"Reports of cases determined in the Supreme Court of the state of Missouri" by Samuel A. Bennett, Reporter, Vol.XIX; ("Missouri Reports") Vol.19, pgs.368 to 369 (California State Law Library, Sacramento, 1/2004)
      DUNCAN'S Adm'r, Appellant, vs. DUNCAN, Respondent; Supreme Court of Missouri, Jefferson City, 19 Mo. 368; January, 1854, Decided.
      Appeal from Buchanan Circuit Court.
      GAMBLE, JUDGE, delivered the opinion of the court. The plaintiff, styling herself in the petition, administratrix of all and singular, the goods, chattels and effects of Robert Duncan, deceased, commenced her civil action against the defendant, upon a note alleged to have been made by the defendant to the intestate, and upon an account due from the defendant to the intestate, praying judgment as administratrix. The defendant answered, denying a part of the indebtedness, and setting up, as an off-set, a demand which he held upon the intestate. There was a replication to the off-set. At the trial, the plaintiff offered in evidence the record of her letters of administration upon the estate of the intestate, which was rejected. She then offered in evidence the note made by the defendant to the intestate, which was rejected. The rejection of the evidence is the ground of complaint here. The ground of the rejection was, that the petition did not sufficiently allege that she was administratrix. The petition stating the character in which the plaintiff sued (as administratrix) and the indebtedness to her intestate, and praying judgment as administratrix for the debt, is a sufficient statement of the cause of action, and of her right to sue, "in such manner as to enable a person of common understanding to know what is intended." Code, art. 6, sec. 1. And being such statement, the plaintiff was entitled to prove it, by giving her letters in evidence. The judgment is, with the concurrence of the other judges, reversed, and the cause remanded.
      (MAD: from the Missouri Supreme Court Historical Database http://www.sos.state.mo.us/archives/judiciary/supremecourt/
            Supreme Court Case Files; Contributor Appellant/Deceased Robert Duncan, Appellant/Administrator Mary Duncan, Respondent Marquis D.L. Duncan, filed 1854, Buchanan Co., Civil proceeding, reversed and remanded, debt, administratrix acted properly and can sue for debt; M.D.L. Duncan owed $130 to Robert Duncan; Identifier Old Box Number 65, Old Folder Number 14, Location 16A/5/9, Box 195, Folder 8; Courtesy of the Missouri State Archives.)
 

"Reports of cases determined in the Supreme Court of the state of Missouri" by Horatio M. Jones, Reporter; ("Missouri Reports") Vol.29, pgs.368 to 377 (California State Law Library, Sacramento, 1/2004)
      DUNCAN, Defendant in Error, v. MATNEY, Plaintiff in Error; Supreme Court of Missouri, Jefferson City, 29 Mo. 368; January, 1860, Decided.
      Error to Buchanan Circuit Court.
      This was an action to recover damages for the sale of plaintiff's land by the defendant, as sheriff of Buchanan county, by virtue of an execution. Plaintiff alleged in his petition that about the 14th day of December, 1857, defendant was sheriff of Buchanan county; that a certain judgment had previously been rendered against plaintiff; that an execution issued on said judgment and "was placed in the hands of the sheriff of Buchanan county for collection;" that about said 14th of December, 1857, defendant, under said execution, sold all the right, title and interest of plaintiff in and to west half of the south-west quarter of section twenty-six, in township fifty-six, of range thirty-five; "that no legal levy had ever been made on said land so sold by defendant or any one else; that defendant never advertised said land for sale, but sold without advertising the same for sale in due form of law;" that plaintiff was never notified by defendant or any one else of said execution so that he could make his selection as provided by statute; that plaintiff had always a sufficiency of personal property not exempt from execution. "Plaintiff further states that for the purpose of getting back said property so sold he had to pay out and expend and otherwise incur liability to the amount of two hundred dollars. Plaintiff further states that by reason of said illegal levy, proceedings and sale of said land by said defendant, he has been damaged in the sum of two hundred dollars, and for which he prays judgment."
      At the trial the plaintiff adduced the following facts in evidence. He introduced S. N. Sheridan as a witness, who testified that he was sheriff of Buchanan county about the 4th of November, 1857, when the execution referred to in the petition came into his hands as sheriff. The execution was dated November 4, 1857. He testified that he never notified Duncan that said writ was in his hands; that when he resigned his office of sheriff he handed over all the papers in his hands as sheriff, including this execution, to W. R. Penich, the coroner. Penich, the coroner, testified that the writ came into his hands to be served about 23, 4, 5, 6 or 7th of November, 1857; that with it was the copy of an advertisement for the sale of land; that from this copy he endorsed on said execution a levy of said writ, and handed in the copy of the advertisement to the Journal office to be published in the St. Joseph Weekly Journal, a paper published in St. Joseph, Buchanan county; that he endorsed said levy on said writ without leaving the city of St. Joseph and without notifying the plaintiff thereof; that he handed over the writ of execution to Matney, the defendant in this suit. The execution with the endorsement thereon was introduced in evidence. The endorsement was as follows: "I levied the within execution on the following described real estate -- eighty acres of land, west half of south-west quarter of section twenty, township fifty-six, range thirty-five -- also eighty acres of land, west half of north-west quarter of section twenty-six, township fifty-six, range thirty-five -- also one hundred and twenty acres of land, east half and south-west south-west quarter of section twenty-three, township fifty-six, range thirty-five. Done in Buchanan county, in Missouri, November 26, 1857. Advertised for sale in Journal, December 19, 1857. W. R. Penich, coroner." "I return the within execution satisfied in full. December 19, 1857. James H. Matney, sheriff."
      The plaintiff also introduced in evidence the deed of the sheriff Matney. This deed recites the judgment, the issuing of the execution "directed to the sheriff of said county, and to me, the said sheriff, delivered, by virtue of which said writ or execution I, as sheriff aforesaid, did on the 26th of November, 1857, levy upon and seize all the right, title and interest, claim, estate and property" of the said Duncan in and to the following described real estate, to-wit: Eighty acres of land, west half of south-west quarter of section twenty-six, township fifty-six, range thirty-five -- also the west half of the north-west quarter of section twenty-six, township fifty-six, range thirty-five -- also one hundred and twenty acres, east half and south-west quarter section twenty-three, township fifty-six, range thirty-five." The deed then recites that previously to the day of sale he gave more than twenty days' notice of the time and place of sale by causing a full description of said property to be advertised in the St. Joseph Weekly Gazette; that he did on the 19th of December, 1857, sell a portion of said real estate, to-wit, the west half of the south-west quarter of section twenty-six, township fifty-six, range thirty-five. He then proceeds to convey said tract to the purchasers.
      The defendant having duly proven advertisement of sale published in the St. Joseph Weekly Journal, offered the same in evidence. The court ruled it out on objection of plaintiff. It was as follows: "Sheriff's sale. By virtue of an execution to me directed issued from the clerk's office of the Buchanan court of common pleas, in favor of Benjamin F. Loan, and against Bartly M. Duncan and Augustus Mark, I will, on the 19th day of December, 1857, sell to the highest bidder, for cash in hand, at the court-house, in the city of St. Joseph, Buchanan county, Missouri, between the hours of nine o'clock A. M. and five o'clock P. M. of said day, and whilst the said court is in session, all the right, title, interest and claim of the said Bartly M. Duncan of, in and to the following described real estate, viz: Eighty acres of land, west half of south-west quarter of section twenty-six, township fifty-six, range thirty-five -- also eighty acres of land, west half of north-west quarter of section twenty-six, township fifty-six, range thirty-five -- eighty acres of land, south half of north-west quarter of section twenty-three, township fifty-six, range thirty-five -- also one hundred and twenty acres of land, east half south-west south-west quarter of section twenty-three, township fifty-six, range thirty-five, to satisfy said execution. [Signed] W. R. Penich, coroner. November 27."
      The court, at the instance of the plaintiff, gave the following instructions to the jury: "1. There is no evidence before the jury that said land sold was ever advertised for sale; and no sale of land by a sheriff is a legal sale on his part without advertisement. 2. If the jury believe from the evidence that defendant sold said land of plaintiff without first having advertised the same, either himself or some one other to advertise for sale the said lands, they will find for plaintiff, and assess his damages at such sum as he has sustained thereby. 3. Defendant admits that he never advertised said land for sale."
      The court gave the following instructions asked by defendant: "1. Unless the plaintiff had some title to the land mentioned in the petition the jury will find for the defendant. 2. This defendant is not liable in this action for any omission on the part of Sheridan or Penich, whilst they had the execution given in evidence in their hands as officers, failing to perform acts required by law and said writ to be performed by them as such officers. 3. The levy endorsed on said execution is evidence that said land was seized by the officer to satisfy said execution. 4. Unless the jury believe from the evidence that the plaintiff has sustained some damage by the sale of said land, this defendant will find for him. 5. Unless the jury believe from the evidence that the land mentioned in the petition was not levied upon by virtue of said execution by an officer authorized to levy the same, or was sold by defendant without having been first advertised for sale for twenty days prior to the time fixed for such sale, or by full publication in a newspaper printed in said county, the jury will find for the defendant." The court refused the following instruction asked by defendant: "6. The recitals in the sheriff's deed read in evidence are prima facie evidence of the matters contained in such recitals."
      The jury found for plaintiff.
      COUNSEL: Loan, for plaintiff in error. The court erred in excluding the notice of sale offered on part of defendant. The instructions given for plaintiff were erroneous and calculated to mislead. The motions for a new trial and in arrest should have been sustained.
      Vories & Vories, for defendant in error. I. The advertisement was properly excluded. The land advertised and sold by the sheriff's deed had never been levied on. The return on the execution shows the tract levied on to have been the west half of the south-west quarter of section twenty, township fifty-six, range thirty-five. The land sold was in section twenty-six. Neither the levy nor the advertisement states in what county the land was situated. There was a variance between the advertisement and the deed with respect to the paper in which the advertisement was made.
      II. The court committed no error in giving the first and third instructions. The land was not advertised as the law directs. The advertisement shows land upon which no levy had been made. The court committed no error in refusing the sixth instruction.
      SCOTT, JUDGE, delivered the opinion of the court. This is one of those suits, becoming so common under our present practice act, from which it is impossible to ascertain what legal idea was in the mind of the attorney at the time he wrote the petition. It is alleged that the plaintiff, "for the purpose of getting back the property illegally sold, had to pay out and expend and otherwise incur liability to the amount of two hundred dollars." The petition then concludes with the averment that, by reason of said illegal levy, proceedings and sale of said land, the plaintiff has been damaged in the sum of two hundred dollars, for which he prays judgment. We infer from this that the plaintiff claims as damages, and as the measure of the loss he has sustained, the two hundred dollars he paid to obtain the restoration of the property sold. It is admitted then that the sale passed title. If that was the case, then the irregularity of the sale did not make it invalid. If the plaintiff then sustained an injury, it must have been by reason of the irregularities of which complaint is made. Now how does he make it appear that the payment by him of two hundred dollars was a natural and legal consequence of the irregularities? If any irregularity had been committed by the officer in conducting the sale, and that irregularity, being known to the by-standers, had damped the ardor of bidders or in any manner caused a diminution of the sum that would otherwise have been realized from the sale, the plaintiff would be entitled to recover the damages he could show he had sustained by reason of the misconduct of the officer; but he does not allege that the property was sacrificed, or that the sale was injuriously affected by the matters of which he complains. That he gave two hundred dollars to regain his property is no evidence of the extent of the loss he sustained, or that payment was no legal and natural consequence of the misconduct of the officer. Such payment may have been prompted by motives with which the sheriff had nothing to do and which ought not to have affected him. Had his malice prompted the plaintiff to pay ten thousand dollars for the restoration of his property, could he have expected to recover that sum? He had no right to fix the measure of his damages by a voluntary payment.
      We will now examine the breaches of duty of which the plaintiff complains the officer was guilty. One of them is, that no levy was made. Our statute regulating executions declares that the word "levy" shall be construed to mean the actual seizure of the property by the officer charged with the execution of the writ. (Section 74.) This, of course, only applies to property capable of being seized. The act regulating fees directs that when an execution is served on real estate, the officer shall be bound to go on the land or sufficiently near it if necessary in order to describe it properly. (Section 13.) Now it will be seen that the law is silent as to any notice to the defendant in the execution being requisite to constitute a valid levy, and also as to the manner in which a levy shall be evidenced. There is nothing in the case which shows that it was necessary to go on land to make a levy, which is not required if the officer is otherwise sufficiently informed in relation to the property to describe it properly.
      The twenty-fifth and thirty-fourth sections of the act regulating executions giving the defendants the right to elect on what property executions shall be levied, and the order in which the property shall be offered for sale, are silent as to notice by the sheriff to those defendants. This is a subject for legislation, and the courts can not, without assuming duties which do not properly belong to them, make rules in relation to it. A good officer, when it is practicable, will always inform a party of an execution he may have against him, if he believes he is not aware of it, and will confer with him before he makes a levy. But the defendant may be out of the way; he may be out of the county; or, knowing the shortness of time in which a levy and advertisement must be made, he may keep out of the reach of the officer, and thus prevent a levy in time to make a sale before the return day of the process. In this way many abuses would creep in, which would be beyond any power of correction the courts possess. The law seems to have left to defendants, against whom executions have been issued, the duty of taking notice of the fact. It is generally known to defendants, and laws are adapted to the cases which most frequently occur. In the event of abuse by the officer, or of collusion with the plaintiff or others, the courts can give redress by virtue of the control they possess over the execution of their process.
      It is singular that, under the circumstances, the court should have instructed the jury that the defendant admitted that he did not advertise the land. The defendant, in making the sale, acted as the successor in office to another. He had been in office but a few days before the sale. In order to make a sale at the return term of the court it was necessary to adopt the levy and advertisement of his predecessor and carry on the execution of the process begun by the officer whom he succeeded, and it is stated expressly in the answer that the land was advertised by the officer whom he replaced, and yet the court instructs the jury that he admitted that he did not advertise the land, and gives no explanation of the object of the instruction. Now what was the purpose of such an instruction? Was it to declare that the successor in the sheriff's office could not adopt the act of his predecessor in part execution of process? Was he not bound to do it? Could he subject the defendant to the cost of another levy and advertisement, without incurring a liability to an action? It is not maintained that the successor must adopt the acts of his predecessor if he is satisfied that they are illegal and irregular.
      The plaintiff does not show that he sustained any damage by reason of the omission in the advertisement of the name of the county in which the lands were situated. It is generally known that the sheriff of one county can not, under an execution, sell lands lying in another; nor is it shown how he was damaged by the mistake he made in copying the description of the land levied on. The evidence shows that the land advertised was the land sold, and it is hard to see how a mistake in copying a levy from another paper on the back of the execution could prejudice the plaintiff. If the levy was properly made, a mistake afterwards committed in copying it could not affect the legality of the sale. We have already said that the law is silent as to what shall be the evidence of a levy; but if a levy is made, and a memorandum made of it on a separate piece of paper, and that memorandum before the return of the writ is copied on it, we see no objection to the regularity of such a course, nor to the officers using his advertisement as evidence of a levy in making his return to the writ. The plaintiff's own witness explains this whole matter.
      The court erred in rejecting as evidence the advertisement of the sale. If it be said that it was inadmissible because it contradicted the defendant's deed, it may be answered that although a deed can not be contradicted when used as evidence of the agreement and understanding of the parties to it, yet this deed was offered in evidence by the plaintiff merely as an admission of the defendant, and the rule is, that when an instrument, of whatever solemnity it may be, is offered merely as an admission made by the party executing it, it is always competent to him to explain it, and to show that he was under a mistake in making it, or to prove any other circumstances which will do away with the effect of the admission.
      Reversed and remanded. The other judges concur.
      (MAD: from the Missouri Supreme Court Historical Database http://www.sos.state.mo.us/archives/judiciary/supremecourt/
            Supreme Court Case Files; Contributor Appellant James A. Matney, Respondent Bartley M. Duncan, filed 1859, Buchanan Co., 12th Circuit, Civil proceeding, reversed, for recovery; Sheriff fulfilled execution against Duncan who later sued for damages of repurchasing land; no irregularity as Duncan admitted sale passed title; Identifier Old Box Number 83, Old Folder Number 13, Location 16A/6/4, Box 238, Folder 5; Courtesy of the Missouri State Archives.)
 

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