Harrison v. Cachelin

35 Mo. 79 | Mo. | 1864

Bates, Judge,

delivered the opinion of the court.

This is an appeal from the judgment of the St. Louis Land Court, in overruling a motion made by Leon Levi and Nicholas Levi, to set aside a sheriff’s sale and deed. The case is this: '

A suit was pending in the Land Court in which Harrison was plaintiff, and Cachelin and the two Levis were defendants ; and on the 31st day of October, 1859, that suit was continued at the defendants’ costs, and execution awarded against them therefor, which was issued on the first day of September, 1860 ; and on the 24th day of September, 1860, the sheriff, acting under that execution, sold a lot of ground, which was bought by the plaintiff Harrison, and a deed was made to him therefor. The deed purported to convey to him the estate of all-the defendants, Cachelin and the two Levis.

At the return of the execution, the Levi’s having given Harrison notice of their intention to do so, filed their motion to set aside the sale and to set aside the deed, and, for causes in support of the motion, alleged

1. That the sheriff never gave to them any notice of said execution, nor did he make any demand of them of payment thereof.

2. The sheriff did not levy upon nor advertise the interest, right and title of these two defendants for twenty days prior to the day of sale.

8. The sheriff not having levied upon the land as the land of the defendants, could not lawfully convey the same as the land of these two defendants to the said Harrison ; and,

4. That the sheriff did not properly advertise said lands as the land of these two defendants, nor so as to give legal notice of their interest in the same.

They filed with the motion their affidavit that they had no notice of the issuing of the execution, of a levy, or advertisement of the sale ; and also, that the property was levied on and advertised as the property of Constant Cachelin and others. At the hearing of the motion, it appeared that the advertisement of the sale (which was published for a sufficient time in a newspaper in which the sheriff frequently made sxrch publications) recited that an execution had been issued in favor of Harrison, and against “ Constant Cache-lin and othersand stated that the sheriff would sell “ all the right, title, interest, claim, estate and property of the above named defendants.”

It did not appear that any notice of the execution had been given to the Levis, or demand of payment made of them; nor did it appear that they had then, or at any other time, offered to pay the execution ; nor was any other fact shown which could affect the question of their right to notice ; nor was the value of the property shown, nor its relation to the sum for which the sale was made.

1. As to the notice. It does not appear but that the real estate sold was situated in the same county in which the defendants in the execution resided, and, therefore, they were entitled to no notice of the execution; The right of the defendant in an execution to elect what property shall be first levied or sold, is a right which he may exercise or not, at his pleasure..

2. As to the advertisement. The statute requires that notice shall be given “ of the time and place of sale, and what real estate is to be sold, and where situated by advertisement.” In this case the advertisement complies literally with the requirements of the statute, and is sufficient substantially to accomplish all that is designed to be accomplished by one advertisement; it gives public notice of the sale. Parties and purchasers must themselves take notice of the regularity or irregularity of the judgment and execution.

No error is seen in the record. Judgment affirmed.

Judges Bay and Dryden concur.