239 Mo. 649 | Mo. | 1912
— This case is before us on a second appeal. The opinion delivered on the former appeal is reported in 204 Mo. 228. The facts involved in the former appeal and the ruling of this court thereon, briefly stated, were as follows:
John Dougherty, a resident of Knox county, Missouri, died in 1874. By his will he devised to his wife Ellen the real estate in controversy, being lots five, eight, nine and ten, in block five, in the original town, now city, of Edina, in Knox county, Missouri, during her life or widowhood, with power to sell any or all of said property. At her death or remarriage the remainder was to go in equal portions to the four children of the testator, viz., Bernard, Mary C., Catherine and John A. S. Dougherty. Ellen Dougherty, after the.
After the cause was thus remanded to the circuit court Antonio Dougherty filed another amended petition, in which the validity o'f the sheriff’s deed to Anthony R. Gangloff was assailed upon the following grounds:
First: That at the time of the sale John A. S Dougherty resided in Shelby county, Missouri, - and was not given notice of the execution and sale, or notice of the exemption rights to which he was entitled as the head of a family.
Second: That in the notice of sale the sheriff gave notice that he would sell John A. S. Dougherty’s interest in the property subject to all prior liens and judgments.
Third: That the price at which the property was sold was grossly inadequate, which inadequacy was caused by the recital in the notice of sale that the property would be sold subject to all prior liens and judgments, and by the further fact that at the time of the sale, owing to the fraudulent acts of the defendants in procuring and placing of record the various conveyances involved in the first trial of the case, John A. S. Dougherty had no apparent title to any interest in the property, all of which conveyances were subsequently adjudged to be illegal and void by both the circuit court and this court. . •
In the second count of his amended petition plaintiff asked that he be adjudged the owner of an undivided one-fourth interest in the property, subject to the dower of Dena Dougherty, and that partition of the property be made.
The answers denied that plaintiff had any interest in the property; pleaded the sheriff’s deed to Anthony R. Gangloff;- denied plaintiff’s allegations assailing
The facts developed at the second trial bearing upon the validity of the sheriff’s deed were, in substance, as follows:
In December, 1900, Anthony B. Gangloff recovered judgment against John A. S. Dougherty, in the circuit court of Knox county, for the sum of $917.81. Execution was issued thereon afterwards and on the 12th day of May, 1903, the sheriff levied upon John A. S. Dougherty’s interest in the lots and advertised the same for sale. In the notice of sale the sheriff recited the levy and gave notice that at the time and place designated he would sell all of the right, title and interest of John A. S. Dougherty, subject to all prior liens and judgments. At the sale Anthony. B. Gangloff purchased the property at the price of one hundred dollars, and received the sheriff’s deed mentioned in the pleadings. At the time of the sale John A. S. Dougherty was the head of a family and resided in Shelby county, Missouri. He was not notified of the execution and sale or of his exemption rights. It was agreed by the parties that at the time .of the trial the value of the four lots was five thousand and five hundred dollars.
Upon the evidence adduced, the circuit court found that the execution sale was regular and conveyed the title of John A. S. Dougherty to Anthony B. Gangloff, and that the title should be quieted in said Gangloff. Judgment was entered in conformity with the finding, and plaintiff appealed to this court.
I. Appellant complains of error in the holding of the trial court that the failure of the sheriff to notify the execution debtor of his exemption rights, as re
The evidence shows that the execution debtor, at the time of the sale, was the head of a family and was entitled to select and hold exempt from execution three hundred dollars worth of real or personal property, under the provisions of section 2183, Eevised Statutes 190-9, and that the sheriff did not give him notice of his exemption rights pursuant to the requirements of said section 2184, supra.
In the case of Hudson v. Wright, 204 Mo. 412, the precise question raised by appellant was considered by this court. In that case the decisions in this State were reviewed and it was held that the failure of the sheriff to give such notice to the execution debtor di d not make an execution levy and sale of real estate void. We adhere to the ruling in that case.
II. Error is assigned to the ruling of the lower court that the sheriff’s deed is not void by reason of the failure of the execution creditor to give the debtor notice of the execution and sale.
. There is no merit in this point. Section 2220, Eevised Statutes 1909, requiring the plaintiff in certain cases to give to the defendant written notice of the execution, has no application to the facts of this case. The judgment upon which the execution was issued was rendered against John A. S. Dougherty after personal service of summons upon him in Knox county, while he was a resident of that county. He appeared and contested the suit on the merits. Under such circumstances he was not entitled to the notice provided for by section 2220. [Harness v. Cravens, 126 Mo. 233; Young v. Scofield, 132 Mo. 650.]
III. It is contended that error was committed in the refusal of the court to set the deed aside on the ground that the property was sold in bulk, instead of
It is sufficient to say upon this point that no such issue was raised in the trial court. It has long been an established rule of appellate procedure in this State that a litigant is bound by the theory upon which he tries his case in the lower court. He cannot “try his cause on one theory in the trial court, and then, if beaten there on ground of his own choosing, spring a fresh theory on his adversary in this court.” [Bray’s Adm’r v. Seligman’s Adm’r, 75 Mo. l. c. 40; Henry County v. Citizens Bank, 208 Mo. l. c. 226.]
IY. Appellant’s next assignment is that the court should have held that the sale and deed were void because the sale was made “to pay costs only, when the execution under which it was made did not certify any costs or command the officer to collect any, and because the sale in fact did not yield one cent to be applied on the judgment described in the execution.”
In support of the contention thus made, appellant cites and relies upon the case of Nelson v. Brown, 23 Mo. 13. In that case a sheriff’s sale was set aside because the evidence showed that at the sale the execution creditor bid seven dollars for the lot offered for sale and the sheriff struck it off to him at that price, but'with the understanding that the amount of the bid should be increased or decreased to just the amount of the expenses of the sale. The case is not in point. The evidence introduced in this case shows that the execution creditor made a bid of one hundred dollars for the property and it was sold to him for that sum. He paid the one hundred dollars to the sheriff. The report of the sale made by the sheriff shows that he disbursed the money so received by applying $50.65 to the payment of the costs that had accrued in tbe canse, and by paying the balance, amounting to $49.35, to the execution creditor. The effect of the sale and the
Y. The objection to the finding and judgment of the circuit court most strongly urged by appellant, both at the oral argument and in briefs, is that the sheriff’s sale was made under such circumstances, and in a manner so unfair to the execution debtor, that there was no competition in the bidding at the sale, with the result that the execution creditor was enabled to secure the property at a grossly inadequate price.
Under this complaint appellant presents three objections to jthe sheriff’s sale and the deed made pursuant thereto, viz.: First, That the consideration was grossly inadequate; second, That at the time of the sale the title to the property was so clouded that no one would bid on the interest of John A. S. Dougherty when that interest was sold by the sheriff, and that all of the conveyances so clouding the title were procured and placed on record by the .defendants for the purpose of defrauding John A. S. Dougherty, all of which conveyances have by the judgment of the circuit court and this court been adjudged to be illegal and void; third, That in the notice of sale John A. S. Dougherty’s interest in the property was advertised to be sold subject to all prior liens and judgments, when in fact there were no prior liens or judgments affecting his interest in the property, which misleading recital also contributed to the inadequacy of consideration.
The question whether inadequacy of consideration alone, however gross, constitutes equitable ground for setting aside a sheriff’s deed, was fully considered by this court, in Banc, at the last term, in the case of Mangold v. Bacon, 237 Mo. 496. The conclusion reached in that case was that “a court of equity in Missouri, acting with caution and only in an aggra
In the trial of this case in the circuit court it was agreed that the value of the lots involved was $5500. Taking that valuation as a basis of the value at the date of the sale, a one-fourth interest was worth $1375. The sale of John A. S. Dougherty’s interest, however, was subject to the dower of Dena Dougherty, which has heretofore been finally adjudged to be of the value of $467.25. The value of the interest sold at the sheriff’s sale was therefore $907.55. It was sold for $100’, a fraction over eleven per cent of its value. This falls far short of being such a grossly inadequate consideration as would warrant a court in setting the deed aside on that ground alone, when tested by the rule announced in Mangold v. Bacon, supra. And in view of the fact that at the time of the sale the records of Knox county showed that John A. S. Dougherty had no interest in the property, it is not strange that no larger sum was offered for his interest. It is apparent, when all of the circumstances under which the property was sold are considered, that appellant is not entitled to relief on the ground of inadequacy of consideration alone.
This brings us to a consideration of the facts relied upon by appellant, in connection with the alleged inadequacy of consideration, as furnishing grounds for setting the deed aside.
The clouded condition of the title at the time of the sale, so far as the record before us shows, was due to no misconduct on the part of the defendants herein. There is no evidence whatever that the deed of trust, trustee’s deed and the deed from James Dougherty to Catherine Dougherty and Mary C. Gfangloff were not all made in good faith, for full value, and under
Neither does the recital in the notice of sale that John A. S. Dougherty’s interest in the property would be sold subject to all prior liens and judgments furnish any basis for the equitable relief sought. Appellant’s contention on this point is based upon the assumption that the notice was false and misleading, in that the statement complained of was equivalent to an assertion that there were prior liens and judgments affecting the property, when in truth there were no such prior liens or judgments. If the facts thus assumed were supported by the evidence, a serious question as to the validity of the deed would be presented. We have carefully examined the record upon this point and find no evidence whatever tending to show that there were no prior liens or judgments. If such liens and judgments did exist the execution debtor was not harmed by the statement made in the notice, because the title acquired by the purchaser would be subject to the judgments and liens, regardless of any statement made in the notice of sale. The burden was upon the plaintiff to show that the sale was not fairly conducted. In order to entitle him to relief on account of the statement in the notice it was incumbent on him to show that the notice was misleading in a way that would tend to prevent bidding’ at the sale. He failed
It would have been the better practice had the sheriff followed the usual custom of simply advertising all of the right, title, interest and estate of the execution debtor, leaving the prospective bidders to ascertain the condition of the title. But the incorporation .in the notice of the statement complained of, without proof that it'was false or misleading, furnishes no ground for setting the deed aside.
For the reasons given the judgment should be affirmed. It is so ordered.