134 Mo. App. 266 | Mo. Ct. App. | 1908
This appeal came here as a branch of a suit in partition. Instead of being divided in kind, the land of which partition was asked, was sold pursuant to the judgment of the court by a Special Commissioner and the plaintiff in error, John J. Cole, bid it in for $17,025, paying the Commissioner five hundred dollars on the purchase price. The property was a lot in the city of St. Louis described as in city block 135, beginning at the intersection of the south line of Clark avenue with the east line of Seventh street, and running thence east along the south line of Clark avenue 127 feet 6 inches, more or less, to an alley, thence south along the west line of said alley 48 feet 7 inches, thence west parallel with said south line of Clark avenue 36 feet, thence north parallel with the said west line of said alley 22 feet, thence west parallel with said south line of Clark avenue 91 feet 6 inches to the east line of Seventh street and thence north along the east side of Seventh street 26 feet 7 inches to the place of beginning. The sale was approved without objection. Cole-afterwards refused to comply with his purchase and the property was resold by the Commissioner for about $2,500 less than Cole’s first bid. These facts are set out by the Commissioner in a petition or motion filed in the circuit court, asking that Cole be required to pay the Commissioner the difference between his (Cole’s) bid and what the property brought at the second sale.
The court refused to declare, on the evidence, the finding should be for defendant, either against plaintiff’s demand, or on his counterclaim for five hundred dollars he had paid on his bid; also refused to declare if it found the property in question was sold by the Commissioner January 3, 1907, to defendant for $17,025, and defendant refused to complete the purchase because the title was incumbered by a private alley and the party wall agreement, and further found there was, on May 20, 1907, a second sale by the Commissioner for $14,500, and that said second sale was made subject to said incumbrances, the verdict should be for defendant, and his damages assessed at the sum already paid by him. A declaration was given for defendant to this effect: if the property was sold January 3, 1907, at public auction to defendant for $17,025, and before the sale the Commissioner represented to defendant the title was perfect and the property had the area stated in the- description contained in the notice of sale and set out above, the verdict must be for defendant for what he had paid on his bid. Different inferences of fact might be drawn regarding the truth of the several issues between the parties, and, therefore,
1. We must notice first the error assigned for refusing to grant defendant a trial by jury. In Hensley v. Baker, 10 Mo. 157; Hensley, who had bid for a slave sold under execution by Baker, a sheriff, refused to pay the amount of his bid on the ground the slave was unsound; whereupon the sheriff again sold for a less sum and proceeded on the statute by motion against Hensley for the difference between the two prices. The statutes provided then, as they do now, if a bidder at an execution sale refused to pay the amount of his bid for property struck off to him, the officer making- the sale might again sell to the highest bidder as though no previous sale had occurred, and if a loss was occasioned, recover the amount of it on motion before a court or justice in a summary way. [R. S. 1835, p. 258, secs. 40, 41 (Mo. Ann. St. 1899, secs. 3202, 3203).] Hensley demanded a jury to try the motion and having been denied one, he assigned error for the refusal on appeal. The Supreme Court held that, as the statute directed such proceedings to be on motion and it was not usual to try the truth of facts on which motions were predicated by a jury, the granting of a jury was discretionary. In Hewitt v. Lally, 51 Mo. 93, a proceeding by motion for judgment against the defendant in favor of the sheriff, for a loss occasioned by the defendant’s refusal to pay for land he had bid in at a partition sale, wherefore it was resold for less, the Supreme Court said like proceedings were prescribed for sales of land' in partition suits as for sales under execution; citing Wagner’s Statutes, p. 610, secs. 46, 47 (Mo. Ann. St. 1899, secs. 3202, 3203) and Wagner’s Statutes, p. 960, sec. 31 (Mo. App. St. 1899, sec. 4407). The statute last cited is found in the chapter on Partition and says partition sales shall be governed by the same regulations as execution sales. Because of that statute-
2. Defendant asserts he was justified in refusing to complete his purchase, because he ascertained subsequent to the sale, the property was incumbered in the manner stated. It will he observed the court declared the law exempted him from liability if the Special Commissioner who conducted the sale, or his auctioneer, represented to defendant the title to the lot was perfect and that its area conformed to the description we .have given; but refused to exempt him if the Commissioner merely sold the property by the calls and boundaries thus described, and he refused to take it on account of the incumbrances, whereupon there was a second sale subject to the incumbrances, for a less sum. In other words, the court excused defendant if the Commissioner represented the title to the lot was perfect, but refused to excuse him merely because the first sale occurred without allusion to the incum-brances; whereas at the second they were mentioned and the bystanders told the property would be sold subject to them.
(a) Many cases have been cited from New York and other States in which courts, because a doubtful and unmarketable title would be acquired, relieved purchasers at partition and other judicial sales (not under common fi. fa.’s) from the duty to complete their contracts. The law in those States, is that a sale pur
(b) As the court gave the declaration exonerating defendant if the title was represented to be perfect, of course, error is not assigned for this ruling; but defendant complains the court found wrongly as to the facts predicated in the declaration, and this contention raises the question of whether, on the whole evidence, it is apparent there was a misrepresentation regarding the title. In each of the opinions supra rendered by our Supreme Court, it was said, either expressly or by inference, that where fraud or misrepresentation occurred at the sale, or a careful purchaser had been led into mistake by the conduct of the seller, the court might, prior to confirmation, set the sale aside. This rule fails to reach the present case, because the sale to defendant was confirmed without objection from him, and, therefore, it is contended by plaintiff’s counsel he can have no relief against his contract. We think it unnecessary to determine whether, if facts of fraud, misrepresentation or innocent but misleading conduct on the part of the Commissioner, came to defendant’s knowledge after confirmation, he might not be excused from completing the transaction. It looks like he would have a footing in equity under those circumstances. [Campman v. Necewaner, 60 Neb. 212; Riggs v. Purcell, 74 N. Y. 370; Preston v. Fryer, 38 Maine, 221; Smith v. Britton, 3 Ired. Eq. 347; Becker v. Richardson, 41 N. J. Eq. 656. We do not take up the point for decision because, regarded in the light most favorable to defendant, the evidence falls short of consist
3. It is insisted the difference between the amount hid for the-property at the two sales is no true measure of the damages sustained by the commissioner, because a different property was sold the second time. We will allow the law is as defendant contends, if his statement of facts is correct. [Pepper v. Deakyne, Ramsey v. Hersker, Riggs v. Purcell, supra; Roy v. Adams, 59 N. Y. Supp. 1046; West v. Derrick, 100 Pa. St. 509; Hammond v. Gilleaud, 111 Cal. 206; Smith v. Roberts, 106 Ga. 106.] It is true the easements were spoken of at the second sale and not at the first; but it does not thence follow a different title was sold. The property was sold by the same description, and as the certificate of title was present at the first sale and bystanders were notified they could inspect it and ask questions about the title, on these facts, the court might find the same premises were sold, and on the authority of the statutes (secs. 3202, 3203) and of the decision in Hewitt v. Daily, treat the difference between the prices as the measure of plaintiff’s damages.
4. It seems that two or three persons interested in the property and its proceeds, and who were parties to' the partition suit, had directed the dismissal of this proceeding against defendant, and it is argued the court erred in. failing to dismiss it. This is the Special Commissioner’s motion wherein, he acts in effect, as a master in chancery. He is entitled to the price defendant bid, to be returned into court and disposed of as the court may direct. The persons in question had no power to order a dismissal of any portion of the proceeding, though, after the money is paid,
5. It is argued the property was not sold the second time for the general account of defendant and, therefore, in making the second sale the first one was treated as a nullity. What the statute said was, the second sale should be held as though no previous one had been made (secs. 3202, 3203), and the loss recovered in a summary way. The Commissioner was not required to give notice he sold on account of the defendant as the first purchaser. Defendant will receive the benefit of the price paid by the second purchaser in the way of a credit on his hid.
The judgment is affirmed.