63 Mo. 19 | Mo. | 1876
delivered the opinion of the court.
The material averments in the petition are, that on and prior to the 10th day of March, 1865, one Robert A. Hewitt was the owner in fee simple of a certain piece of land in DeKalb county, Missouri, and that at the March term, 1865, of the circuit court in that county, a judgment was rendered against him in favor of one Meek ; that an execution was duly issued on. the said judgment, and that after giving the proper notices, the sheriff, at the September term, 1866, proceeded to sell the land to satisfy the judgment and costs ; that there was a defective service of process on Hewitt, so that the judgment was not legally binding upon him ; that at the sale Hewitt was present by his lawfully author
The prayer was, that there should be a decree confirming the title in the plaintiffs, and divesting it out of the defendant.
There was a motion to strike out all the substantial and material allegations in the petition, which the court sustained ; and the plaintiff, electing to abide by his petition, and refusing to amend, brings the case here by writ of error. The motion was in reality a demurrer, and the action of the court stands on the judgment sustaining it.
The defendant stands here precisely in the position that Hewitt, his grantor, would if he were sued and had never parted with his interest in the land. It is alleged that he bought with full notice of the facts, which must be taken to be conceded, as the case is now presented. Besides, he purchased merely by quitclaim, and is not warranted in setting up the defense of an innocent purchaser without notice.
When a sale of land is made no person can be permitted to receive both the money and the land. And it has been held, in the application of this principle, that it makes no difference whether the proceedings under which the sale occurs are voidable or wholly void, in consequence of the want of jurisdiction. In 21 Smith’s Lead. Cas. (5 Am. Ed.), p. 662, the author says that when those who are entitled to avoid a sale adopt and ratify it, by receiving the whole or any part of the purchase money, equity will preclude them from setting it aside subsequently for reasons that are too plain for statement. (Stroble vs. Smith, 8 Watts 280; The Commonwealth vs. Sherman’s Adm’rs, 6 Har., 343; Smith vs. Worden, 7 Ill., 424.)
*23 “When a sale is made of land,” said Lewis, J., in Smith vs. Worden, “no one can he permitted to receive both the money and the land. Even if the vendor possessed no title whatever at the time of the sale, the estoppel would operate upon a title subsequently acquired. It was held by this court, in the Commonwealth vs. Sherman’s Adm’rs, that equitable estoppels of this character apply to infants as well as adults, to insolvent trustees and guardians as well as to persons acting for themselves, and have place as well when the proceeds arise from a sale by authority of law as when they spring from the act of the party. A party will not be allowed to indulge in bad faith and make innocent purchasers the sport of his tricks. When a sale is void the reception of the purchase money renders it valid. (Aderman vs. Yord, 1 Rawle, 171; Furness vs. Ewing, 2 Barr, 479.) These principles are founded on elevated morals, common honesty and pure good faith, and are co-extensive with the principles of the mischief which they are designed to counteract. Where a party has taken the fruits of a judicial proceeding, he should not after-wards be heard to question it. Though an estoppel may debar the truth in a particular case, yet, as was said by the Supreme Court of the United States in VanRanselaer vs. Karney (11 How., 326), it imposes silence on the party only when in conscience and honesty he should not be allowed to speak.”
There can be but one sentiment in reference to the justice of this case, and the law utters the same voice. Hewitt saw his property sold to satisfy his debt. The purchaser had the means of knowing whether the proceeding was regular, and so far bid at his peril, but he paid his money in good faith and Hewitt, with a full knowledge of all the facts, not only allowed him to pay off and satisfy the judgment, but he demanded and received the surplus which the plaintiff bid, and which he paid to the sheriff for his use and benefit. By his actions he ratified the sale, and es-topped himself from laying any claim to the land. I have been unable to find any case which countenances his claim, and I apprehend none can be found.