Mobley v. Nave , 67 Mo. 546 ( 1878 )

Hough, J.

— This was an action of ejectment instituted November 13th, 1872. The plaintiff, Myra H. Mobley, is the only child and heir of John II. Lykins, who died intestate seized of the property in dispute. Before the death of Lykins the defendant became the owner of two judgments against him, one for the sum of $1,221.54, and another for the sum of $470.56, both rendered on the 18th of March, 1859, bearing interest at the rate of ten per cent., which were liens on the lot sued for. On petitions filed March 15th, 1862, for that purpose, theliens of these judgments were revived. The foregoing judgments were exhibited against the estate of Lykins, and the defendant Nave claims title under a sale made by the administrator of Lykins on the 18th of September, 1863, to pay the debts of the deceased. The judgments held by Nave were credited with $1,425, the amount of'his bid at said sale, and he went into possession under the administrator’s deed, and made some improvements. It appears from the records of the probate court that said court was not in session on the day. on which the sale was made, and there was no testimony tending to show any mistake in the date of the sale as recited in the'deed.

1. MISTAKE IN COURT RECORD, HOW CORRECTED; parol evidence. Parol testimony was offered by the defendant to show that the court was in session on the 18th of September, 1868, but it was rejected by the court, and properly so. If it can be shown by parol that a court was jn session on a day when the records of such court show that it stood adjourned on that day, we see no reason why it cannot also be shown by jiarol that a court was not in session when its records show that it was in session. The confusion and injury which might ensue upon the admission of parol testimony for such a purpose, in a collateral proceeding, is manifest. Proceedings in a court of record can only be proved by the record. Medlin v. Platte County, 8 Mo. 235; Milan v. Pemberton, 12 Mo. 598; Dennison v. County of St. Louis, 33 Mo. 168; Maupin v. Franklin County, ante p. 327. -And the time at which such proceedings were had can be shown only by the record. Mistakes in the record, as to the date of the sittings of a court, or of any proceeding therein, must,'like other mistakes in the records of such courts, be corrected by a direct proceeding for that purpose.

2. AN ADMINISTRATOR'S DEED. As the administrator’’s sale was not made during the session of the probate court, and as it is not pretended that dither the circuit or the county court was in session at the time, the administrator’s deed passed no title to the defendant. McClurg v. Dollarhide, 51 Mo. 347. This view of the case makes it unnecessary to consider the objections made to the record entry of the order of sale, the alleged nunc pro tunc entry of such order, and the notice given by the administrator that application would be made for such order.

3. EJECTMENT AGAINST PURCHASER AT VOIE ADMINISTRATOR'S SALE. The circuit court treated the sale as invalid, hut, as prayed by the defendant in his answer, took an account between the-parties, charging the defendant with the rents and profits of the premises, and crediting him with the value of his improvements, and the amount of the purchase money and interest at six per cent., and awarded the possession to the plaintiff upon the payment of the balance so found to be due from her. The defendant complains of this adjustment of his equities, and contends that he should have been allowed the whole amount of his two judgments, with ten per cent, interest thereon. It is conceded that if a stranger had purchased, he would be entitled to nothing more than his purchase money and interest, but it is insisted that the owner of the judgment occupies a better position than a stranger, and may demand the whole of his debt.' No sufficient reason for this distinction has been presented in argument. If the heir should seek to recover lands of which the ancestor died seized, from a mortgagee in possession who had gone in under a void sale, he would be required to pay the whole mortgage debt, although it should exceed the amount of the purchase money or the value of the land; and his proceeding would be by bill to redeem ; he could not maintain ejectment. In such case the mortgagee, having an estate in the land, would have a right to the possession thereof until every portion- of his debt was paid. Not so, however, with a judgment creditor. He has as’such no jus in re, but a right of priority only in enforcing his demand against the debtor; and where he has obtained possession under a void sale, no bill to redeem, by the heir, is necessary in order to regain the possession, nor could he retain possession of 'the land as against the heir by virtue of the lien of his judgment. He stands as any other purchaser would, and must be conteut with his purchase money and interest. The judgment of the circuit court will therefore be affirmed.

The other judges concur.

Affirmed.