10 Mo. 112 | Mo. | 1846
Statement of the case adopted by the Court, and opinion by
On the 20th April, 1820, Rufus Easton recovered a judgment in the Circuit Court vs. Jacques . Glamorgan’s executors, for $131 debt, and $28 82-100ths damages, besides costs. On the 10th June, of the same year, he issued execution on said judgment, on which the sheriff returned that he had made by the sale of a tract of land, all the cost and interest, and one hundred. and forty-three dollars two and three-fourth cents of the debt and damages. On the back of the advertisement appended to the sheriff’s return, the sheriff endorsed that Peter Faysaux had purchased the land at the price of $169. No other execution issued until the 3d April, 1826, when an alias fir fa. was issued, on which the clerk endorsed the credit of $143 02 3-4, made on the former execution, leaving a balance due of debt and damages $16 79 1-4. On this execution the sheriff returned, that he had levied upon the real estate described in the advertisement, a copy of which was returned with the execution; that having duly advertised the same, he sold it at public auction to John O’Fallon and Jesse G. Lindell, the highest bidders therefor, at the price of $33, which after deducting costs, satisfied the execution and left a surplus of $5 42, in the hands of the sheriff. The property levied upon is not described in che return, otherwise than by a reference to the aclver
On the 7th June, 1845, Louis Glamorgan, Henry Glamorgan, and Cyprian Glamorgan, (the latter acting by his guardian,) claiming to be the heirs and legal representatives of Jacques Glamorgan, deceased, filed their motion to set aside the sale to O’Fallon and Lindell for the following reasons:—
1st. Because the alias fi. fa., by virtue of which the sale was made, was irregular and void, and had been improvidently issued, the whole amount of debt, damages, interest and costs, having been collected on the first execution.
2d. Because the said alias fi. fa. was not in fact levied on the land prior to the sale,
3d. Because the said premises, for many years prior thereto, and at the time of said sale, were divided and laid out into blocks, squares and town lots, visibly divided by streets and alleys, and other marked boundaries, then plainly visible and well known, as well to the sheriff as to O’Fallon and Lindell; that the property was susceptible of a division, and a good part thereof had before then been added to the city of St. Louis, as an addition thereto, by one Jeremiah Conner, and dedicated as such, all of which was known to the sheriff, O’Fallon and Lindell; that the sheriff did not sell or offer to sell it in parcels; but sold the same in solido, by reason of which the premises sold for much less than they would otherwise have done.
4th. Because the sheriff sold the premises for more than was due and unpaid upon said fi. fa., the whole amount of which, including debt, damages, interest, and cost, was $5 42, less than the amount for which it sold, as appears by the sheriff’s return.
5th. Because the description of the premises, as contained in the advertisement and deed, is vague, uncertain and void.
7th. Because the sheriff, in his advertisement, falsely described the premises as bounded east by a fence, &c., west by the king’s domain or vacant land, and south by the ¡road to St. Charles, whereas no such fence -did then exist, nor had .existed for many years, and it was not bounded •west by the king’s domain, nor south by the road to St. Charles; that said -description was throughout false, vague, and uncertain, as was well known, as well to the sheriff, as to O’Fallon and Lindell.
8th. Because between the land of Tayon, on the north, and the St. •Charles road, on the south, there was in fact embraced two arpens by ‘forty, whereas the sheriff in his advertisement and deed professed to sell •only one by forty, leaving it entirely uncertain which of the two he intended to sell.
9th. Because the said sale was collusive, fraudulent and void.
The first and last reasons were subsequently withdrawn by the plaintiffs.
Notice of the motion was duly served upon O’Fallon and Lindell, the purchasers; but on no other persons. The motion was supported by the affidavits of Louis Clamorgan and Charles Collins, filed concurrently with the motion. The affidavits state in substance, that Jacques Glamorgan died in 1814, having made and published his last will and 'testament, by which he divided his estate into five parcels or shares, one «of which he devised to his son St. Eútrope, one to his son Cyprian Martial, one to his daughter Apaujine, and two to his son Maximin; that at the time of his death he was the owner, in fee simple of a certain tract of land in St. Louis county, containing one arpen in front by forty arpens in depth, the same which formerly belonged to Gabriel Dodier, by whom it was conveyed to a mulattress, named Esther, by deed dated 4th Nov., 1798, and by said Esther conveyed to said Clamorgan, by deed dated 2d Sept., 1794, and afterwards in 1811, confirmed to Clamorgan by the board of commissioners, and ratified by a subsequent act of congress; that at the time of his death Clamorgan left only the four children above named; that St. Eutrope was born on or about 27th November, 1799; Apauline about the month of April, 1803; Cyprian Martial in the same year, and Maximin in 1807; that St. Eutrope died intestate and without issue in 1825; that Maximin died intestate, without issue, and unmarried, about 7th June, 1825; that Cyprian Martial died 29th February, 1827, having made and published his last will and testament, by which he
The only point decided by the Circuit Court in this case, was that all the parties interested-had not been notified of the motion, and therefore it was not maintainable — and the propriety of this opinion is the only question for our determination.
The argument from which the plaintiffs draw their right to dispense with a notice to the present claimants of the property, is chiefly the argument ab inconvenienti. This is a very good argument where a question may be decided either way, without interfering with any settled principle of tf,v or mpity. And if tho proposition assumed in the argument tl.-'-t
Judge Scott concurring, the judgment is affirmed.