21 Mo. 216 | Mo. | 1855
delivered the opinion of the court.
We see no principle on which this proceeding can be sustained. Nothing is shown in the pleadings or the evidence, which, in any wise, connects the sale enjoined by this proceeding with the
The city, as she alleges, by a former sale, acquired a title to the lots, the subject of this controversy. She now proposes to sell them, in order to be reimbursed the costs and expenses of the first sale. The owners of the lots seek to enjoin this last sale, on the ground that the first sale was irregular and void.
Granting that the first sale might have been enjoined, yet the parties not having availed themselves of the right to do so, there is now no necessity for the interference of a court by injunction. The mischief,- if any, has been already done. All the right such proceedings could confer has passed to the city. It cannot be a matter of any importance to the owners whether they contest the validity of the first sale with one party or another. As the validity of the sale turns on a question of power or authority to make it, the alienation of the city’s title to another cannot affect the owners. The question of notice to a subsequent purchaser could not affect' the case. Whether he had notice or not, would be a thing of indifference. The only effect of this proceeding is, to try the validity of the first sale in an injunction suit. There is no warrant in the law for this. The owners are in possession, and when it is assailed by a title alleged to be a nullity, the defects in it may be pointed out. It will devolve on the city to show that such steps had been taken as vested the title of the owners in her.
This case bears no resemblance to those in which courts of equity enjoin sales of real estate where there is a shadow resting upon the title, by which a less price will be obtained for it than if the title was clear. Such proceedings are had at the instance of those who are interested in the proceeds of the sale. Here the city is selling her own title, and whether it brings much or little, is the concern of none but herself. Gay v. Hancock, 1 Ran. 72. Lane v. Tidball, Gilmer, 130.
The judgment will be reversed, find the bill dismissed; the other judges concurring.