178 Mo. App. 233 | Mo. Ct. App. | 1914
In this ease the sheriff of Boone county sues at the relation and to the use of the heirs of John T. Giesing, deceased, to recover of defendant the sum of $1000, that being the difference between the amount of defendant’s successful but unpaid bid at a partition sale of deceased’s land, and the amount that was afterwards obtained for the land upon a subsequent sale.
Defendant was also one of the heirs of said John Giesing, deceased, and was the plaintiff who brought the partition suit against the other heirs who are plaintiff’s relators in this suit.
At the October, 1911, term of the Boone county circuit court judgment of partition was rendered in said suit and the land ordered sold.
Thereafter, at the January, 1912, term, to-wit, on January 26, 1912, the sheriff offered said land for sale according to law at public auction to the highest bidder for cash, and at such sale the defendant became the highest and best bidder therefor at the price and sum of $7000 and the land was stricken off and sold to him for -that amount.
The sheriff at once entered in his sales-book the name of the defendant as the purchaser and $7000 as the purchase price opposite the description of the land sold and a copy of the advertisement showing the suit and decree under which the sale was made. This also gave the names of the parties to the suit and the date of sale.
Thereupon the land was again put up at public auction, and the highest bid obtainable was only $6000, or $1000 less than defendant had agreed to give. This bid was paid by the purchaser and the sale to him was approved by the court.
The sheriff then instituted this suit. Defendant’s answer set up the plea of the Statute of Frauds and denied that there was any contract binding on him to purchase the land.
The case was tried by the court without a jury and a judgment was rendered against defendant for $1000 from which he appeals.
Defendant offered testimony tending to show that the resale was by agreement of parties, but as there was testimony to the contrary and no findings of fact or declarations of law were asked or given the judgment of the court must be accepted as finding that there was no such agreement.
Defendant’s main objection is that as sheriff’s sales are within the Statute of Frauds, and that as our statute (Section 2783, R. S. Mo. 1909), concludes with the words ‘ ‘ and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract,” therefore, the sheriff had no authority to bind defendant because defendant had not so authorized him in writing.
It may be well to observe that the cause of action against a recalcitrant or defaulting bidder is given by statute. [Secs. 2223 and 2593, Revised Statutes 1909.] And the statute nowhere makes the bidder’s liability depend on the fact that he has authorized in writing the
We do not think the amendment of 1887 to the Statute of Frauds applies to judicial sales wherein the sheriff acts “in the execution of judicial power.” If so, its effect is to practically repeal section 2223 and to make a farce of judicial sales. The amendment is dealing with those sales made by an agent under private authority given him so to do, and has nothing to do with those sales ordered by the courts under public authority of law.
It is urged that the sheriff should have reported the sale to the court and obtained an order of confir
The judgment is affirmed.