The law of Missouri allows the lands of a deceased debtor to be
sold under execution, but prohibits it from being done until after
the expiration of eighteen months from the date of the letters of
administration upon his estate.
Where the letters of administration were dated on the 1st of
November, 1819, and the sale took place on the 1st of May, 1821,
the sale was valid. In this case the
terminus a quo should
be included.
Moreover, the sale was ordered to take place on that day by a
court of competent jurisdiction, and this makes the matter
rem
judicatam, and is evidence of the construction which the
courts of Missouri place upon their laws.
And besides, the question of the regularity of a judicial sale
cannot be raised collaterally except in case of fraud in which the
purchaser was a participant.
Page 59 U. S. 159
The case is stated in the opinion of the court.
Page 59 U. S. 161
MR. JUSTICE GRIER delivered the opinion of the Court.
The plaintiffs claim the land which is the subject of
controversy in this suit as heirs of Isaac W. Griffith, who died
seised of the same in 1819. His estate was insolvent. Judgments
were obtained against his administrators in 1820, executions were
issued thereon, and the property sold by the sheriff. The
defendants claim under the purchaser at this sale.
On the trial, the court below instructed the jury
"That the sheriff's deed, read in evidence under the judgments
and executions also in evidence, was effectual to devest the title
of the heirs of Isaac H. Griffith to the land mentioned in said
deed."
It is admitted that in the State of Missouri, the lands of a
deceased debtor may be taken in execution, and sold by the sheriff
in satisfaction of a judgment against the administrator. And also
that such deed vests in the purchaser all the estate and interest
which the deceased had in the property at the time of his death.
But it is alleged that this sale is "without authority of law and
void" because the execution was issued and sale made before the
time limited for stay of execution against the
Page 59 U. S. 162
real estate of a decedent. The law and the facts, on which this
objection to the validity of the sale is founded, are as
follows:
By an act of 1817, it is provided that
"All lands, tenements, and hereditaments shall be liable to be
seized or sold upon judgment and execution obtained against the
defendant or defendants, in full life, or against his or her heirs,
executors, or administrators, after the decease of the testate, or
intestate, provided no such land, tenements, or hereditaments shall
be seized and sold until after the expiration of eighteen months
from the death of such ancestor or the date of the letters
testamentary or letters of administration, and execution may issue
against such lands, tenements, and hereditaments after the death,
testate or intestate, and after the time aforesaid, in the same
manner as if such person were living."
The letters of administration on the estate of Griffith are
dated on the 1st of November, 1819. The sale was made by the
sheriff on the 1st of May, 1821, on executions previously
issued.
It is contended that the term of eighteen months from the 1st of
November, 1819, had not expired on the 1st of May, 1821, and
consequently the sale was without authority of law, and void.
But we are of opinion that the assumption on which this
inference is based is not correct; nor the inference correct, if
the assumption were granted.
If the day on which the letters of administration be counted in
the calculation, the term of eighteen months had "expired" on the
1st of May, 1821.
Whether the
terminus a quo should be so included, it
must be admitted, has been a vexed question for many centuries,
both among learned doctors of the civil law and the courts of
England and this country. It has been termed by a writer on civil
law Tiraqueau the
controversia controversissima.
In common and popular usage, the day
a quo has always
been included, and such has been the general rule both of the Roman
and common law. The latter admits no fractions of a day; the
former, in some instances, as in cases of minority, calculated
de momento en momentum. The result of this subdivision was
to comprehend a part of the
terminus a quo. But in cases
where fractions of a day were not admitted, as in those of
usucaption or prescription, a possession commencing on the 1st of
January and ending on the 31st of December was counted a full year.
It was in consequence of the uncertainty introduced on this subject
by the disquisitions and disputes of learned professors that
Gregory IX, in his decretals, introduced the phrase of "a year and
a day," in order to remove the doubts thus created as
Page 59 U. S. 163
to whether the
dies a quo should be included in the
term. It thus maintained the correctness of the common usage while
it satisfied the doubts of the doctors.
The earlier cases at common law show the adoption of the popular
usage as the general rule, but many exceptions were introduced in
its application to leases, limitations &c., where a forfeiture
would ensue. But the cases are conflicting, and have established no
fixed rule as to such exceptions. Lord Mansfield reviews the cases
before his time in
Pugh v. Leeds, Cowp. 714, and comes to
the conclusion
"that the cases for two hundred years had only served to
embarrass a point which a plain man of common sense and
understanding would have no difficulty in construing."
The rule he lays down in that case is
"that courts of justice ought to construe the words of parties
so as to effectuate their deeds, and not destroy them, and that
'from' the date may in vulgar use, and even in strict propriety of
language, mean either inclusive or exclusive."
It would be tedious and unprofitable to attempt a review of the
very numerous modern decisions or to lay down any rules applicable
to all cases. Every case must depend on its own circumstances.
Where the construction of the language of a statute is doubtful,
courts will always prefer that which will confirm rather than
destroy any
bona fide transaction or title. The intention
and policy of the enactment should be sought for and carried out.
Courts should never indulge in nice grammatical criticism of
prepositions or conjunctions in order to destroy rights honestly
acquired.
In the present case, there is no reason for departing from the
general rule and popular usage of treating the day from which the
term is to be calculated, or
"terminus a quo," as
inclusive. The object of the legislature was to give a stay of
execution for eighteen months, in order that the administrator
might have an opportunity of collecting the assets of the deceased
and applying them to the discharge of his debts. The day on which
the letters issue may be used for this purpose as effectually as
any other in the year. The rights of the creditor to execution are
restrained by the act, for the benefit of the debtor's estate. The
administrator has had the number of days allowed to him by the
statute to collect his assets and pay the debts. The construction
which would exclude the day of the date is invoked not to avoid a
forfeiture or confirm a title, but to destroy one obtained by a
purchaser in good faith under the sanction of a public judicial
sale.
If the statute in question were one of limitation whereby the
remedy of the creditor would have been lost unless execution
Page 59 U. S. 164
had issued and sale been made within the eighteen months,
probably a different construction might have prevailed. Yet even in
such a case the precedents conflict.
See Cornell v.
Moulton, 3 Denio 12; and
Presbury v. Williams, 15
Mass. 193
But if the correct application of the rule to the present case
were doubtful, the fact that this question was raised and decided
by the court between the parties to the judgment, and that the
court, after considering the question, ordered the sale to be made
on the 1st of May, would be conclusive not only as
res judicata
inter partes, but as evidence of the received construction by
the courts of Missouri, which it would be an abuse of judicial
discretion now to overturn.
Finally, there is another view of this case which is conclusive
as regards this and all other objections taken by the counsel to
the validity of the sheriff's deed. It is the well known and
established rule of law in Missouri and elsewhere that a judicial
sale and title acquired under the proceedings of a court of
competent jurisdiction cannot be questioned collaterally except in
case of fraud in which the purchaser was a participant.
See Grignon v.
Astor, 2 How. 319. The cases of
Reed v.
Austin, 9 Mo. 722; of
Landes v. Perkins, 12 Mo. 239;
Carson v. Walker, 16 Mo. 68, and
Draper v.
Bryson, 17 Mo. 71, show that this principle of the common law
is the received and established doctrine of the courts of
Missouri.
The sheriff's deed in the present case is founded on a regular
judgment in a court of competent jurisdiction, and an execution on
said judgment issued by authority of the court, and levied on
property subject by law to be taken and sold to satisfy the
judgment. The writ authorized the sheriff to sell; a sale was made
in pursuance thereof by the sheriff, and a deed executed to the
purchaser, which was afterwards acknowledged in open court
according to law. At this time, all parties interested could and
would have been heard to allege any irregularity in the proceedings
that would justify the court in setting it aside. The objections to
this sale do not reach the power of the court or the authority of
the sheriff to sell. The issuing of an execution on a judgment
before the stay of execution has elapsed, or after a year and day
without reviving the judgment, the want of proper advertisements by
the sheriff, and other like irregularities may be sufficient ground
for setting aside the execution or sale on motion of a party to the
suit or anyone interested in the proceedings, but when the
objections are waived by them and the judicial sale founded on
these proceedings is confirmed by the court, it would be injurious
to the peace of the community and the security of titles to permit
such objections to the title to be heard in a collateral
action.
Page 59 U. S. 165
On every view of the case, we are of opinion that the title of
the purchaser is protected by the established rules of law, and
that there was no error in the instructions given to the jury by
the court below.
The judgment of the circuit court is therefore
affirmed.