*220Motion tor Rehearing.
Appellant’s grantor was a co-mortgagee, under the foreclosure of which respondent purchased. He stood in the relation of a trustee of the mortgagor and his co-mortgagee. Whatever interest he acquired under the outstanding encumbrance inured to the benefit of the mortgagor and his co-mortgagee, and was held by him in trust for them, and could not be conveyed to him by the appellant. When he foreclosed the mortgage, respondents acquired this interest at the sale under the foreclosure. The appellant does not plead that he had no notice of this relationship, and the records affect him with it. (Price v. Evans’ Heirs, 26 Mo. 30 ; 2 Sto. Eq. Jur. 1016; 1 Sto. Eq. Jur., § 307 et seq.) Bliss, Judge,delivered the opinion of the court on motion for rehearing.
Plaintiffs desire rehearing for the reasons :
1. That former decisions are overruled in considering the evidence in an 'action at law. This point was made in argument and considered. We pass upon no disputed question of fact, but hold that the court erred as to the legal effect of undisputed facts. A formal declaration of law could not have made the error more apparent, and the trial court was only called upon to decide as to the effect of certain proceedings in passing title, and this is a question of law which we must review.
2. It is claimed that the decision overrules the statute and its settled construction. The defendant claims title through an execution sale upon a judgment recovered before a justice of the peace. Previous to the levy and sale by the sheriff and filing of the transcript in the Circuit Court, an execution had been issued to a constable of the county, who returned no goods, etc. The record does not show affirmatively that it was issued to a constable of the township where the defendant resided. This, it is claimed, is such an irregularity as rendered the subsequent proceedings void, and hence no title passed by the sheriff’s sale after the *222transcript was filed in the Circuit Court; and Coonce v. Munday, 3 Mo. 373, and other cases are cited.
These cases show that the issuing of execution to a constable, and return, are necessary to give the Circuit Court and sheriff jurisdiction, and hence the fact can be inquired into collaterally. In the case under consideration the original writ was issued to a constable of Lexington township, and returned by him as served in that township. After the judgment was rendered, an execution was issued to a constable of the same name — doubtless the same person — who returns that he could find no goods, etc., in Lafayette county. Parol evidence was offered upon the trial to show that the execution-defendant lived in another township ; and the question arises whether that fact can be inquired into collaterally.
The purchaser at sheriff’s sale is bound to know that the execution is sustained by a judgment, and by such a judgment as still authorizes its issue. No execution can.issue to a sheriff upon a justice’s judgment unless a previous one has been issued to the proper constable and returned nulla bona, and a transcript has been filed. The purchaser then will examine the transcript and certificates, and may inspect the justice’s- records and files, and in doing so will not be likely to find anything to show the actual residence of the execution-defendant. Neither the summons (Wagn. Stat. 815, § 16) nor the execution (Wagn. Stat. 841, § 4) show such residence, and he will only see that the summons was served, the judgment rendered, and the execution properly issued and returned. He has a right to presume that the defendant lived within the justice’s jurisdiction, and may safely purchase. If the proceedings have not been regular, those interested may attack them directly and show aliunde facts — as that the constable was not an officer of the township where the defendant resided — that should set aside the proceedings. But if the party supposed to be injured sleeps, strangers cannot step in. The purchaser saw enough to authorize the sheriff to sell. In other words, the latter had acquired jurisdiction upon the record, and the sale cannot be treated as void. In this collateral proceeding, the evidence that tended to show that the execution-defendant was *223not residing in Lexington, but in another township, when the execution issued, should not have been considered ; and such is. the spirit of the decision in Murray v. Laften, 15 Mo. 621.
3. The only evidence of the execution and return was a minute in the transcript that one was issued, with a certified copy of the return, and it is therefore insisted that the subsequent execution issued to the sheriff was unauthorized and void. As intimated in Murray v. Laften, it would be well if a transcript of the justice’s execution and return thereon were filed and recorded with the transcript of the judgment; and when so made it would furnish record evidence not to be collaterally contradicted. Rut this is not the only admissible evidence. The original execution, with the return, may be found, and the fact of its issue and return may be thus proved. In Carr v. Youse, 39 Mo. 346, the court held that a mere certificate of the justice that an execution had been issued and returned nulla bona was not sufficient, but if the record in the clerk’s office does not contain the justice’s execution and return, they may be proved by the record of the justice itself or a certified transcript of the same. The record then in the clerk’s office seems to be defective in not containing a copy of the execution, as well as of its return, and no evidence of such execution was offered aliunde.
Did this omission in the trial below render the sheriff’s deed a nullity? If it were necessary for the defendant, in order to sustain the deed, to go back of it and show the regularity of the proceedings upon which it was founded, then, under our decisions, he probably failed, inasmuch as he neither produced the original execution nor a transcript of it or of its record. I cannot but think our decisions have been rigid in this regard, and contrast with the liberality shown to sheriffs’ sales under judgments in courts of record. The justice’s execution constitutes no part of the title of the purchaser at the sale by the sheriff, but is a mere preliminary requirement before an execution can issue by the circuit clerk. It would be difficult and often impossible, after a lapse of years —so loosely do many of our local magistrates keep their papers — to find the originals; and as the law does not point out what, except the transcript of the judgment itself, shall *224be filed and recorded, it might be well, in the interest of titles, to be less stringent as to proofs of this preliminary matter.
But the defendant did produce evidence made competent by statute, that the justice’s execution was issued and return nulla bona. Section 14 of the article concerning justices’ judgments (Wagn. Stat. 839) provides that a judgment of a justice of the peace, when the transcript is filed with the circuit clerk, shall be “carried into effect in the same manner and with like effect as judgments of Circuit Courts,” etc. Executions are issued and sales are made the same as upon Cir.cuit Court judgments, and the deed of the sheriff has the same legal effect. By section 54 of the act concerning executions (Wagn. Stat. 612), certain recitals are required to be made in the sheriff’s deed, “which recitals shall be received as evidence of the facts therein stated.” In McCormick v. Fitzmorris, 39 Mo. 24, this court held these recitals to be presumptive evidence of the facts recited. The sheriff’s deed offered in evidence recited the facts that an execution was issued by the justice of the peace and that it was returned nulla bona, before the issue of the one upon which he made the sale.
It may be said that this recital is insufficient because it does not show that the justice’s execution was issued to a constable of the township where the execution-defendant resided. The facts recited in the deed are taken from the execution placed in the sheriff’s hands by the circuit clerk, and there is nothing upon the clerk’s records to show the domicile of the execution-defendant. He could only see that the original summons was served in Lexington township by one of its constables, and that an execution was issued to and returned by the same constable. No paper would show the residence, only as it would be presumed from the fact that the service of the summons was in Lexington. Hence, if he stated such residence it would be from inference that the justice did his duty, and not from any facts which the record should furnish him. I cannot, then, consider such recital, or its correctness if made, as essential to the validity of the execution and sale under it.
4. It is also insisted that the defendant’s original grantor, the one who purchased at the execution sale, was. also mortgagee with *225others, and that his purchase was in trust for all the mortgagees. Saying nothing upon the main proposition, does it follow that, without an ascertainment of the trust by a direct proceeding — a proceeding that shall, if the trust be found, find the sum paid and provide for its reimbursement — it so attaches to the property that no title can pass through the purchase? The trust, if one exists, is not by contract, but must be ascertained and declared in equity before it' can attach. The present proceeding assumes that the plaintiffs have the legal title, when in fact such title passed to the defendant’s grantor by the sale; and if the plaintiffs would charge the property with a trust, they must do it directly and by an appropriate proceeding. I find no points in the motion not before considered, although not commented upon in the original opinion.
The motion is overruled.
The other judges concur.