3. The sheriff by law was authorized to sell so much land, and only so much, as was requisite to satisfy the executions under which he made the sale; and, having sold more land than was necessary to satisfy the same, he exceeded his power, and the sale was void. This sale might have been quashed by motion, or set aside by suit.-Shropshire, &c., vs. Pullen. ____
When a sheriff transcends his powers in selling land under execution, and the sale is quashed or set aside, the commissions received and retained by him for making such sale may be recovered in an action against him. The statute of limitations against such action will not commence to run until the sale is set aside or quashed.-Ib.. 512 An execution defendant may maintain an action to recover the value of property sold by the officer, which was exempt from execution, on the indemnifying bond, which was required by the officer, and was executed by the plaintiff in the execution, as provided in section 709 of the Civil Code.--Dixon vs. Bacon, &c. 534
6. The provisions of sections 709 and 711 of the Civil Code apply to exe- cutions issued by the police judge of Owenton, and indemnifying bonds executed before the marshal of said town; and the execution defendant may maintain an action on the bond, as well as any other claimant, for the value of property sold, which was not subject to levy and sale under the execution.—Ib.‒‒‒‒‒‒
7. "Levied November 7, 1863, upon two crops of tobacco, supposed to be sixteen thousand pounds in house, property of W. Barton and D. Adams, for the satisfaction of the within. Stayed by order of James Roberts, attorney for plaintiff, November 7, 1863.
"WM. E. BERRYMAN,
"D. S. for W. J. Brewer, S. H. C."
The stay in the above return is held to refer to, and to operate as, a stay of the levy, and not a stay of the execution, and that the levy was not thereby discharged. (Daviess vs. Myers, 13 B. Mon., 512.) See act of December 20, 1865 (Myers' Sup., 755), requiring consent to the stay to be in writing, &c., after January 1, 1867.-Chamberlin & Tapp vs. Brewer, &c.----.
If the return of a sheriff is ambiguous, it is susceptible of explanation by other evidence-Ib.____.
If the return of a sheriff is unambiguous, extraneous evidence may be introduced to contradict it, and to show its falsity, in a suit directly against the sheriff and his sureties. (Caldwell vs. Harlan, 3 Mon., 350; Thompson vs. Morris, 2 B. Mon., 35.)——Ib.--- --
Executors and Administrators.
EXECUTORS AND ADMINISTRATORS-
1. An administrator de bonis non is entitled to the possession of the unad- ministered assets of his intestate; but, appealing to equity against the heirs and administrator of the first administrator of his intestate, and also against the heirs of his intestate, for possession of uncollected notes belonging to the estate of his intestate-it appearing that more than five years had elapsed since his intestate's death, and that the notes were not necessary to pay his debts-to avoid circuity and delay, and save the distributees from unnecessary commissions, the circuit court did not err by dismissing his petition and decreeing a distribution of the estate without permitting it to pass through the hands of the administrator de bonis non.-Bellomy's adm'r vs. Bellomy, &c. 109
2. An administrator of his creditor's estate who returns upon his inventory his own note, should be held as having collected it, especially when he had property liable to execution sufficient to pay the debt; he must be held as having received the money, and his surety liable, as much as if it had been due from some one else and he had collected it.-Hickman vs. Kamp's adm'r and heirs.--- 205
On the marriage of an administratrix, her authority as such ceases. Dukme & Co. vs. Young, &c. .
The right of an executrix resident in Missouri to defend a suit in this State, is not extinguished by her subsequent marriage. Our statute to that effect does not apply to foreign representatives whose rights depend on foreign law.-Moss vs. Rowland, &c. ‒‒‒‒‒
5. According to the common law, which, without proof to the contrary, must be presumed to be the law of Missouri, the State of the resi- dence of the executrix, her executorial functions were neither extin- guished nor suspended by her subsequent marriage.—Ib. 505 The local law requiring a foreign representative to execute bond before suing in this State, does not apply to one who is sued here and chooses to defend.-Ib.-- - 505
T. devised a house and lot to G. and his wife, the testator's daughter, payment therefor by G. being acknowledged in the will. G. qualified as executor of the will, and acquiesced in the devise to himself and wife jointly. G.'s wife was thereby invested with title to, and be- came the owner of, one half of the house and lot.-Boyd vs. Gault, &c. 644
An execator being requested in the will to raise two minor legatees, using the interest on their legacies of six hundred dollars each, as
Executors and Administrators-Extortion.
EXECUTORS AND ADMINISTRATORS—Continued.
far as it would go in so doing, is not chargeable with interest on the legacies until after he ceased to provide for them.-Ib.--- 644
A contract to pay one a consideration to induce him to administer upon the estates of the obligor's father and mother, is not prohibited by law or public policy. The consideration is a good one, and the con- tract enforceable.- Clark vs. Constantine--- 652
1. An executor de son tort, is to be sued, and is liable as other executors; and defenses to their individual claims, can be used, as though, they were rightful executors.-Finnell vs. Meaux
449 The vendor of a slave being a creditor on a note for the price of the slave, with personal security against the estate of the deceased pur- chaser; after the purchaser's death, took possession of, and had said slave in his service, and listed him for work on the military railroad in 1863. If he converted said slave, he is liable for his value at the time of conversion, and for reasonable hire whilst in his possession after the vendee's death. If he illegally took possession, and by reason thereof the slave ran away and made his escape, he is liable to the extent he actually damaged the estate by so doing; and as he became the executor of his own wrong, to the extent he illegally inter- fered with the assets of decedent's estate, the amount and value of such assets in his hands, should be regarded as a payment on his debt, and the surety should be permitted to set it up as an offset, not as a mere trespass, but as assets in his hands as executor of his own wrong. Ib.. 449
Extortion, which is an offense at common law, is defined to be an abuse of public justice, which consists in any officer's unlawfully taking, by color of his office, from any man, any money or thing of value that is not due him, or more than is due him, or before it is due-the punishment for which is fine and imprisonment, and sometimes a forfeiture of the office. (4 Blackstone, 141.)- Commonwealth vs. Mitchell
An indictment charging the defendant, a jailer, with the offense of extortion, by willfully and corruptly compelling a prisoner to pay him money to which he was not entitled-held to be good, and that the facts set forth were sufficient to constitute the offense charged. Ib.. 25
3. If the marshal brought the prisoner to the jailer without an order of commitment, he should not have received him; and it was his duty to have discharged him at once without demanding or receiving any money or thing of value from him whatever therefor.-Ib.______ 25
The fee bill for half commission, for levying the fi. fa., suspended by the creditor's order,, and so returned, is regulated by the 7th article, chapter 38, Revised Statutes, 1 Stanton, 522. But the fee bill for sell- ing the land under venditioni exponas, after act of February 4, 1865 (Myers' Sup., 463), is regulated by that act.-Boyd, &c., vs. Har- per
There being only one levy and one sale, the sheriff was entitled to no more than if the sale had been under the fi. fa, instead of the vend ex. The levy and sale constituted but one entire official act; and as there could have been no sale without a levy, the sheriff had no right to charge for each of these constituent acts; and, consequently, if he charged full commission on the sale under the vend. ex., he had no right to charge half commission for the levy of the fi. fa., suspended by plaintiff's order.-Ib.____.
3. The sheriff's right to full commission on the sale is not affected by the creditor's subsequent quashal of the sale directed by himself.—
1. Appeals from judgments of county courts, on applications for the establishment, alteration, or discontinuance of ferries, may be prose- cuted to the circuit court without supersedeas boud. (Civil Code, secs. 20, 22, §c.)—Bellow vs. Pettus, &c.
2. P., the owner of the land on the north bank of Cumberland river, just below its junction with the South Fork of said river, in Pulaski county, obtained the consent of N., the owner of the opposite bank, for the establishment of ferries to and from said bank across the main stream, and also across the South Fork to the lands of B., who owned the lands above the junction between the two rivers. B. also, at same time, applied for the same privileges from his lands to the oppo- site bank. Held-That P. was not, and that B. was, entitled to the ferry across the South Fork. P. did not own the land on either side of said stream. (Rev. Stat., secs. 4 and 6, chap. 39.)—Ib.‒‒‒‒‒‒‒ 608
Forcible Entry and Detainer-Foreign Judgments.
FORCIBLE ENTRY AND DETAINER-
By the law existing before the adoption of the Civil Code of Practice, a warrant of "forcible detainer" could not be maintained unless the tenant proceeded against had originally entered under the plaintiff in the warrant (Helm vs. Strader, 1 Marshall, 323); but this doctrine is repealed by section 501 of the Civil Code, which provides that "it shall not be material whether the tenant received possession of the demised premises from his landlord, or became his tenant after obtain- ing possession."-McMurtry vs. Adams 70
1. A foreign court cannot, by its judgment or decree, pass the title to land situate in another country; neither can it bind such land by a judg- ment or decree, that the land, in default of the defendants conveying it, shall be conveyed by deed of its own officers to the plaintiffs. Such a conveyance made by its officers would be treated in this country, where the land is situated, as a mere nullity.-Page and wife vs. McKee, &c.
135 2. William J. Lodge died intestate in Indiana, leaving a large estate, real and personal, therein, and also two tracts of land in Trimble county, Kentucky. He left as his heirs-at-law three surviving children, who were of full age, and the children of his daughter, Mrs. McKee, who were minors. His heirs were all residents of Indiana, except his daughter, Mrs. Page, who resided upon the lands in Trimble county, Kentucky. In the partition and distribution of the estate of the intes- tate by the Jefferson circuit court, in the State of Indiana, in a suit to which all the heirs were parties, the Kentucky lands were allotted and set apart to Mrs. Page; and, in pursuance to the judgment of the court, these lands were conveyed to her by deed duly executed by the other two adult heirs and by the guardian of the minor heirs. Thereafter, the minor heirs, together with their father, became resi- dents of the city of Louisville, Kentucky, and thereupon Mrs. Page and her husband instituted suit in the Louisville chancery court against said minor heirs to perfect her title to the Trimble county, Kentucky, lands. This suit was dismissed by the chancellor. Held -That the Louisville chancery court had jurisdiction, and should have proceeded to a final adjudication, and by proper orders directed a conveyance from the minor defendants, and perfected such order by proper deeds of quit claim.—Ib.‒‒‒‒‒.
3. As the Indiana court had jurisdiction of that portion of the estate, real and personal, therein, and of the parties, and as Mrs. Page brought the suit, the judgment of partition and distribution of the Indiana
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