45 Mo. 393 | Mo. | 1870
delivered the opinion of the court.
In this case a demurrer to the petition was sustained by the Circuit Court, and final judgment rendered for the defendant. Exception was taken, and the case appealed to the District Court, where the judgment was affirmed. The case is now here by writ of error. The petition sets forth the following facts, namely: that on the 8th day of October, 1863, Ellison Townsend, as public administrator, having in charge the estate of Samuel Elliott, deceased, recovered a judgment in the Andrew County Circuit Court against the defendant for the sum of $1,636.39 ; that an execution was duly issued on said judgment, and by the sheriff levied on “ one hundred and five acres, off the west side of the northeast quarter of section twenty-five,.township sixty, range thirty-six,” the sheriff supposing and believing that he was levying upon the land owned by the defendant; that at the sheriff’s sale of said land, on the 6th day of April, 1864, the plaintiff, believing that the land belonged to the defendant, purchased the same for the sum of $850, paid the purchase money to the sheriff, and received from him a deed for the land, and the purchase money was applied to the extinguishment of the judgment against the defendant; 'that the defendant had no title to, or interest whatever in, the land sold by the sheriff and purchased by the plaintiff, but did own, have title to, and, at the time, was in possession of, the Avest part of the northwest quarter of section thirty-five, township sixty, range thirty-six, one hundred and five acres, etc.; that the sheriff intended, supposed, and believed, at the time of making the levy and sale, that he was selling, and the plaintiff supposed and believed he was buying, the last-described tract of land which the defendant actually OAvned and possessed; but, being ignorant of the true description of the
There was an objection raised in the demurrer that the petition was multifarious and contained a misjoinder; but neither party has paid any attention to it in this court, and the essential point in the case is that the petition does not state facts sufficient to constitute a cause of action. The argument for the defendant in error is that the plaintiff has no claim for repayment or compensation ; that he purchased at his peril, and that the doctrine of
The first case is Hensley v. Baker, 10 Mo. 157. That ivas a case where a slave was sold, wdio had been wounded by a cut on the leg. The slave was present at the sale, and his leg was examined. The sheriff was heard to say that nothing was the matter with the leg but the scratch of' a brier. Hensley, the purchaser, was told of the hurt the slave had received, though he was at the same time informed that the wound was healed. This information was derived from one of the plaintiffs in the execution, who said he had known the slave all his lifetime. After the slave was struck off to him, he refused to pay the money and complete his purchase, and, on a re-sale, the slave brought a less sum, and an action was commenced for the difference. In his defense he set up the unsoundness of the slave; and the court held that in sales by sheriffs there is no implied or express warranty of the title or soundness of the goods sold; that the rule caveat emptor applied to such cases. But it may be said of that case that it was the sale of a personal chattel, which was present and inspected at the sale, and we know of no authority for implying a warranty under such circumstances.
. In Owsley v. Smith, 14 Mo. 153, it was held that a purchaser of land, at a sale conducted under an order made in a proceeding in partition, can not avoid the payment of the purchase money upon the ground of a failure of title; that such sales are made, like those under ordinary executions, without warranty of title, and that the deed executed conveys the interest, whatever it may be, of the parties to the proceeding, and is a bar against them and all persons claiming under them. Nap ton, J., in his opinion says: “It was not the intention of the Legislature to make the parties to a proceeding in partition responsible for the title, where it was directed to be sold. The whole object of this statute is to enable parties who have an undivided interest in lands, to divide that interest, whatever it may be. When a sale
The case of Heath v. Daggett, 21 Mo. 69, is not reconcilable with a strict application of the maxim of caveat emptor to execution sales ; and in Magwire v. Marks, 28 Mo. 193, it was decided that if a levy of an execution be made upon property not belonging to the defendant therein, and such execution be returned satisfied to the amount made by the execution sale, should the plaintiff in the execution be compelled to refund to the true owner the amount received by him from such sales, he will be entitled to have the satisfaction indorsed on the execution set aside, and to have an execution issued for the full amount of the judgment. The reasoning of the court was that the facts of the case showed that the plaintiff had received no benefit from anything which had been done under the execution, and that the defendant had received no injury ; that the plaintiff had obtained no money, and the defendant had lost none; that both parties were placed in statu quo. The rule of caveat emptor was admitted to be the law of this State, but a section of the statute was referred to to show that the intention of the Legislature was not to extend its operation. A principle strongly analogous to the one contended for by the plaintiff in error in this case, was decided in Valle’s Heirs v. Fleming’s Heirs, 29 Mo. 152. It was there held that where land is purchased in good faith at an administrator’s sale, which is void because the requirements of the statute are not pursued, and the purchase money is applied in extinguishment of a mortgage to which such land was subject-
In all the adjudicated cases in this court, hereinbefore alluded to, the precise question presented in this case has not come up. No case can be found in this State Avhere money has been paid under such a complete' misapprehension of facts ; where a party has paid his money in good faith, and the payment has been applied to the discharge of the execution debt, and the other party has attempted to avail himself of the benefit of the payment, and to also hold the estate supposed to. be purchased.
The question has frequently arisen in other States, and been decided in favor of the maintenance of the action. In Kentucky, the case of McGee v. Ellis, 4 Litt. 244, was upon the sale of a slave, which, it must be remembered, was held there to be real estate. It was a bill in chancery, brought by the purchaser, a third person (from whom the property had been recovered by another stranger), against the plaintiff and defendant, the creditor and debtor. The Court of Appeals held that the purchaser was entitled to recover in equity from the debtor, because, the debt being paid by the money of the purchaser, he would, in equity, be entitled to be substituted in the place of the execution creditor, so far at least as to enable him to maintain a valid demand against the debtor, but he could not recover of the creditor. As further illustrations of the same principle, see McLaughlin’s Adm’r v. Daniel, 8 Dana, 182, and Geoghegan v. Ditto, 2 Metc., Ky., 433.
In Indiana, the first reported case is Muir v. Craig, 3 Blackf. 293. There Jennings obtained a judgment against Craig, and the sheriff levied the execution on a tract of land supposed to be the property of Craig, but which really belonged to the United
The cases just referred to,' and the case we are now considering, are clearly distinguishable from those cited by the counsel for the defendant in error; and to decide this case for the plaintiff in error, it is not necessary to impair their force or qualify them in the least. Indeed, they are in harmony with the received doctrine as to the liability of purchasers at sheriffs’ sales, and did we believe that they applied here, we should cheerfully follow
The plaintiff bought at a fair sale, and paid his money; that money was regularly paid to the creditor, and went to extinguish the judgment against the debtor. It was, then, so much paid for the use and benefit of the debtor. The debtor supposed that his land was sold, and surrendered it to the purchaser, who moved on it and made improvements. Afterwards, ascertaining the mis-description and finding the mistake, the debtor regains possession, and now claims the land, and refuses to refund the money which the purchaser paid for his use, and which was applied to the discharge of his debts. In other, words, he avails himself of the benefits of the payment and holds on to the land besides. The claim is grossly inequitable and unjust, and ought not to be allowed, and I see no reason why the action is not maintainable.
As to the claim for improvements, it is not clearly within the provisions of the statute on that subject, but it seems to come within the reasoning of Judge Napton’s opinion in Yalle v. Fleming ; but on this demurrer I will not discuss the question. My opinion is that the judgment should be reversed and the cause, remanded for a new trial.
Reversed and remanded.
