Lisa v. Lindell

21 Mo. 127 | Mo. | 1855

Scott, Judge,

delivered the opinion of the court.

There is no doubt but that it would have been the safer doctrine, in relation to sales of real estate by sheriffs, to have holden that, in no case was the sale an absolute nullity, so to be regarded whenever it was brought into question ; but that it was Dnly voidable, to be set aside on motion, at the return of the yrit, or afterwards, by a proceeding in the nature of a bill in equity. If such sales were regarded in this latter light, complete justice might be done between the parties, and innocent purchasers would be protected ; whilst, if regarded in the former light, irreparable injury may be done under circumstances wfich could not but cause regret at the result following the operation of the law. Experience has shown that a motion or bil in equity is the mode of redress generally resorted to, wkre really any injury has resulted to the parties from the mamer of conducting a sale, whilst the first objection has only beei taken, when, from after events, it was made the interest of theparties to have it declared a nullity.

L the case of Evans v. Ashley, (8 Mo. Rep. 185,) this tourt, following a course of precedents which seemed war-anted by law, declared a sheriff’s deed a nullity, when taken ii connection with the circumstances under which the sale was Bade — circumstances which showed that the description of the ptemises conveyed, given by the officer, did not serve at all to cfesignate the land which was really sold. In that case, the defendant in the execution owned but six small lots, in 12 J arpens of ground, laid off into lots, which was sold by the description of “12-J arpens of land, near the town of St. Louis, and south of Elias Rector’s, purchased by said Price of E. Hempstead’s administrator, of the estate of M. Lewis, deceased.” The instruction on which the cause turned was to the effect' that, if the tract of land was laid off into town lots and streets by the owner thereof, who sold six of those lots to the defendant in the execution, and to other persons other of said lots, and that the defendant in the execution was no otherwise interested in said tract of land than as owner of the said lots, then the title claimed under the sale by the sheriff is invalid.

Giving full scope to the principle laid down in the above case, and recognizing its authority to its full extent, we do not consider that it affects the cause now under consideration. Here, the description is, “ the one undivided third part of the lots which were not sold by said M. Lisa, in the addition to the then city of St. Louis laid out by said Lisa, Wm. Smith and F. Bates, on the river,” &c. It is in proof that this additior was well known. There is no evidence of the sale of but on! of these lots, before the death of Lisa. This description is applicable to the land sold; it was known by the description giva at the time of sale. The words, “ that were not sold,” >'r “ remaining unsold,” do not render the description uncertan to an extent that affects it. They express nothing more tbn what was implied. The registry act was in force at the timeof the sale. We may suppose the records would have shown wiat lots were sold. These words would have put all those attending the sale upon inquiry. If one had purchased without lo-tice of a prior sale, and recorded his deed, he would have prevailed against a prior unrecorded deed or agreement. So it i; not seen in what way the debtor in the execution could he affected or those attending the sale could be misled or deceive; by the description. There is no similarity between this cass and that of Evans v. Ashley.

In the one case, six small lots situate in a tract of 12-|- ar-pens, are sold by the description of a tract of land containing 12J arpens. In the other, the one undivided third part of the lots remaining unsold in an addition to a town is sold. The interest sold is advertised by this description. The addition is well known. There is no evidence of but one lot in the addition having been sold, and if they had been sold, the record would have shown it, and if it did not, a purchaser would not have been affected without notice. If none of the lots had been sold, the words, “ remaining unsold,” would not have affected the description with uncertainty ; and the fact that one or more of the lots were sold, does not affect the description, as the records furnished the means of ascertaining what were or were not sold.

It has long been the settled law, as declared here, that a sale in a lump, that is, of several tracts of land at a time, or of many lots together, did not make the sale a nullity, but was only a cause for avoiding it, in a direct proceeding instituted for that purpose.

The other judges concurring, the judgment will be affirmed.