Gordon v. O'Neil

96 Mo. 350 | Mo. | 1888

Black,.J.

Proceedings to open Grove' street were commenced before the mayor of the City of Kansas and ' then appealed to the ,circuit 'court.- 'Benefits ; to the- . amount of four, dollars were assessed against'pl’aintiff’s lot, , which'.has .a front' of - forty-six - feet ' on ■' Grove, street and,a depth .of one-hundred, and- thirty-three feet .to Vine street.- , On -the seventeenth 'of January, 1885,. the,sheriff sold this lot-under a-speciabexeCU- ! ’ tion issued, on the. .judgment confirming-the assessment;' and the,, defendant .Q’Neil. became the purchaser-■ and received á deed .dated the .twenty-fifth--of ■ the” same" ' month. ,, . ., , ■’

Thi^ is ,a suit against- -the sheriff and O’Neil to sét aside the .deed. The substantial averments of tifie peti- ' tion are: That Dougherty, who-was'a deputy sheriff,’ and O’Neill conspired, together to purchase the property at a nominal consideration, ■ and pursuant'thereto' prevented other persons from bidding,, so that O’Neil - became the purchaser at fifty-one dollars, the property being worth ■ thirty-five" hundred dollars ; that the lot should have been divided and a .part only sold.

The witness 'Thomas says Dougherty came, to the store, where O’Neil Was engaged, and pointed out. the property he-wanted O’Neil'to buy the'next day; th.at after the sale,- Dougherty told .O’Neil to" go'to the tenants and get them to pay something on the rents, and . not to settle with Gordon "'for less than twelve or fifteen hundred dollars'; that Gordon came to the store and saw O’Neil after the sale and before the date of the sheriff Is deed ; that" O’Neil asked eleven or twelve hundred dol- . larsin settlement-and Gordon left. The "witness says he . followed Gordon; found him on the street, told him what had transpired, and advised hi’m to get á lawyer! On, the other hand, it appears a large number of sales were made on the same day by the sheriff under special executions issued in condemnation suits. The city comptroller attended, and, in each case, bid the debt and costs. Sheriff Hickman cried the s.ales and his deputy, Dougherty, acted as clerk. The attendance was unusually large, and the proof is conclusive that the sheriff endeavored to get the best price he could for the property. O’N eil hád procured information from an abstract office as to a number of parcels of property to be sold, and bid' oh several of- them, but became the purchaser only of this and one other small parcel. ■ After the sale, O’Neil notified the plaintiff of his purchase, and there is much evidence as to what was done in the way of efforts to settled O’Neil asked eleven or twelve hundred dollars, and plaintiff made no proposition. O’Neil .evidently evaded further conferences until he got his deed.

Dougherty roomed with O’Neil, and they probably had some conversations in relation to these sales ; but • aside from the evidence of Thomas there is no. proof of the; alleged fraud. It appears clearly that Dougherty has-and. had no interest in' the purchase, and at the date of the sale had never Seen the property. There is an utter failure to show that anything was said or done to prevent persons from bidding. The evidence of Thomas, as a whole, is unreliable and much colored from his anxiety to bring on litigation between these parties. Our conclusion is, that the charge of fraud is not sustained by the proof, and the plaintiff can have no relief on that ground.

The lot sold in this case was worth three thousand dollars. The assessments and costs amounted to .$8.55, and the property sold for fifty-one dollars. Mere inadequacy of price is not sufficient to set aside a sheriff’s sale ; but where there is a gross inadequacy of price, the proceedings of the sheriff on the execution ought to be free from irregularities. Nelson v. Brown, 23 Mo. 13.

The question then is, whether the sheriff ought to have sold, or at least offered for sale, a part of the lot. The evidence shows that there is a two-story frame house on the Grove street front, and that there are two one-story frame houses on the Yine street front. One of these houses rents for twenty dollars and the others each for ten dollars per month. The evidence is, that the lot could be divided into two parcels, one fronting on Grove and the other on Yine street, or by a line running through the center from street to street. The property is valuable only for residence purposes, but it seems to be in a locality where small houses are appropriate impi’ovements. It was said, in the case of State ex rel. v. Yancy, 61 Mo. 397, that where more property is sold by a sheriff under execution than is sufficient to satisfy the same, and the property could have been sold in parcels, the sale will be set aside on motion of a party whose rights are affected. The court was then, it is true, speaking of a general execution and of the general statute, which makes it the duty of the officer levying upon real estate ■ to divide the property, if susceptible of division. But section 6, article 7, of the charter of the City of Kansas provides that the special execution in these cases shall command the sheriff, “in case said assessment, interest and costs be not paid to him, to sell the property therein described, or so much thereof as may be necessary to pay such assessment, interest and costs.” Under this statute, the officer had the power to divide the property. It contemplates that the officer will exercise a sound discretion in the matter, and if the property is fairly and reasonably susceptible of division, he ought to make the division and sell only so much as will satisfy the execution.

It may be that this property, if offered as a whole at private sale, would sell for as much as if offered in parcels, but that is not the criterion. If the property can be divided without prejudice, and a part will sell for the debt and costs, a part only shall be sold.

Since the debt and costs in this case amounted to but a trifle compared with either part into which the lot could have been divided, and it is reasonably certain from the evidence that either part would have satisfied the execution, we think the deed should be set aside. The fact that the officer did not know how the improvements on the lot were located, can make no difference in the result; for it was his duty to know whether the property could be divided, and to give that matter proper attention. The plaintiff makes a tender of fifty-one dollars in his bill, and on the payment of this amount to O’Neil, or into court for him, the prayer of the bill should be granted. The judgment is reversed and the cause remanded with directions to the trial court to enter up a decree in conformity herewith.

Ray, J., absent; the other judges concur.