61 Mo. 463 | Mo. | 1875
delivered the opinion of the court.
This case comes before us by appeal from a final judgment of the circuit court of Saline county, sustaining a demurrer to the plaintiff’s petition.
The petition was in the nature of a bill in equity to set aside a sale, made by the sheriff of Saline county, of certain lands mortgaged by the plaintiff to said county, to secure a loan of $500 made by said county to the plaintiff in 1849. It alleges that the lands so mortgaged comprised two eighty-
The demurrer stated three grounds of objection to the petition ; first, that it did not state facts sufficient to constitute a cause of action ; second, that it failed to charge any fraud or unfairness on the part of the officer, or on the part of the defendant; and, third, that several causes of action had been improperly united.
The positions assumed by the defendant’s counsel to support the judgment of the circuit court, which are not particularly set forth in the demurrer are: first, that the validity of Hurt’s purchase was brought in question in the case of Hurt vs. Kelly, (43 Mo., 238), and that the plaintiff in this suit should have set up any equities he may have had as a defense in that action ; second, that the petition is defective in not alleging that the sale in mass was neither requested nor desired by the defendant in the execution; that the law presumes that the officer did his duty, and if the land was susceptible of division and was sold in the law will
We put aside at once the point as to the staleness of the plaintiff’s claim. The sale took place in May, 1864, and this suit was instituted in January, 1874, less than ten years thereafter. The statute of limitations in this State applies to all civil actions — to those which were formerly denominated suits in equity as well as to actions at law. Mere lapse of time, short of the period fixed by the statute of limitations, will not bar a claim to equitable relief, where the right is clear, and there are no countervailing circumstances. In doubtful cases, long or unreasonable delay may sometimes turn the scales. (Davis vs. Fox, 59 Mo., 125.) In the present ease no facts are before us save those which are stated in the plaintiff’s petition, and they are admitted by the demurrer to be true, and the relative equities of the parties as they may in fact exist apart from tbe pleadings, do not appear. The only question, therefore, before us at this time, is, as to the right of the plaintiff to relief on the case presented by him in his petition.
The point that the validity of Hurt’s purchase has been heretofore settled by this court in favor of the defendant in this action, in the case of Hurt vs. Nelly (43 Mo., 238), cannot be considered by us now. There is no plea in this case that the subject matter of this'suit has become res judicata, and whether that suit is for any' reason a bar to the present one, cannot be determined on this demurrer.
Before proceeding to consider the second position of defendant’s counsel, it may be well to remark that though the petition fails to allude to any default in the payment of principal or interest, such default may be inferred from the fact that while the plaintiff borrowed only $500, t^ere was due to the county at the time of the sale more than $1,000. Nor is
The statute under which the loan was made and the mortgage taken, gives to the order of the county court, directing the sheriff, after default, to levy the debt and interest of the mortgaged premises, the effect of a special fieri facias on a judgment of foreclosure, and requires that it shall be proceeded upon accordingly. The statute in relation to mortgages provides that a special fieri facias on a judgment of foreclosure shall be executed and returned as executions in ordinary civil suits. The statute in relation to the sale of real property under execution is as follows :
Sec. 30. “When an execution shall be levied upon real estate, the officer levying the same shall divide such property if susceptible of division, and sell so much thereof as will be sufficient to satisfy such execution, tt.nless the defendant in the execution shall desire the whole of any tract or lot of land to be sold together, in which case it shall be sold aecordinglv.”
There is no direct averment in the petition that Kelley neither desired nor directed the sheriff to sell the whole of said land together, and the absence of such averment, it is claimed by defendant’s counsel, is a fatal omission. In support of this position the case of Meir vs. Zelle (31 Mo., 331) is cited, wherein Judge Ewing, who delivered the opinion of the court, said: “The plaintiff’s counsel in his brief also makes the point that distinct parcels of land were sold together, but the motion is entirely silent as to this, and the fact nowhere appears in the bill of exceptions proper, nor in
The foregoing extract, which contains all there is in the opinion on the subject, it is hardly necessary to say, is not, nor does it purport to be, an express adjudication of the poiut made.
In the case of Rector vs. Hart (8 Mo., 448) the question as to the invalidity of sheriff’s sales under execution, made in violation of the statute above quoted, was carefully examined by Judge Scott, and the conclusion was reached by him that a sale in mass, 'by a sheriff, of distinct parcels of real estate, is not ipso facto void, but that it is subject to be set aside on motion, or by bill in chancery, when injury has resulted therefrom to the judgment debtor, and that he who seeks to sustain it must show its justice and expediency.
In the case of Hix vs. Perry (7 Mo., 346) it is said in effect, that when the sheriff sells distinct parcels in mass, in a proceeding to set such sale aside for that reason, it devolves upon him to show that the execution debtor has not been damnified.
Following these authorities, we hold that it was unnecessary for the plaintiff to aver in his petition that he did not desire or direct the property to be sold in mass. Such direction of the debtor in the execution, if given, is a matter of defense which must be pleaded by the officer or purchaser, as the case may be, in order to be made available. But if the rule were otherwise, it sufficiently appears from the petition that the sale was made in mass without the plaintiff’s desire or direction, for he avers that he had no knowledge whatever of the sale.
The fourth position is disposed of by treating the sale as one made under execution, though in either case, whether
But defendant’s counsel complains that there is nothing in the petition showing that the several tracts were fitted for separate use, or that any one proposed to buy any separate parcel of it. It is only necessary to say in reply to this, that a party is not required to plead his evidence. The main fact of the injury, together with the character and particular occasion of that injury, are plainly set forth in the petition, and this is all that the defendant has a right to demand in this particular.
The third ground of demurrer is that the petition is multifarious. So far as the claim for rents and profits is concerned there, can be no question but that it is free from this objection. (Duvall vs. Tinsley, 54 Mo., 93.)
The claim for damages for injuring the orchard, and that for cutting and destroying growing timber, are separately
Though the petition has been very nnskillfnlly drawn, we think it states sufficient ground for relief, and the judgment of the circuit court will be reversed and the cause remanded.
I do not concur in the remarks made in the above opinion, as to the staieness of demand. I think the petition clearly faulty in not negativing or excusing the laches apparent on its face. But since this specific objection was not pointed out by the demurrer, it- cannot, be relied on here; and the petition is not fatally defective in failing to excuse the delay referred to.
Nor do I concur in the views as to the statute of limita-, tions. The old doctrine of laches, as constantly applied by courts of 'equity, I regard as remaining unaffected by that statute ; at all events, within the period it prescribes.