Mead v. Matson

9 Mo. 773 | Mo. | 1846

Napton, J.,

delivered the opinion of the court.

On the 19th day of April, 1843, Edward Mead, George Mead and others, filed their petition in the circuit court of Livingston county, to set aside a sale made by the sheriff said county.

The petition set forth the following facts : that in August, 1840, Roderick Matson recovered against the petitioners the sum of seven dollars costs, in a certain cause which had been instituted by petitioners against said Matson, in the said circuit court of Livingston; that on the 16th Sept. 1842, an execution issued on the same; that by virtue of said execution the sheriff of Livingston county, on the 16th Nov. 1842, levied on the N. W. qr. of sec. No. 20, T. 57, R. 24, situate in said county of Livingston ; and on the 15th Dec. 1842, said sheriff sold the whole of said quarter section in one entire parcel, without dividing the same, or offering to sell the same in parcels; and that one Charles Matson became the purchaser at the sum of twenty-five dollars, as appears by the execution, levy, return, &c.

The petitioners state that they were the owners of said quarter section of land at the time of this sale : that it was susceptible c<f division : that a much less quantity than was sold, would have satisfied the execution : that the larger portion of said land was, and now is, in the town of Utica, and had been surveyed and laid off into town lots : that the said land was susceptible of other divisions, to to-wit: into tracts of eighty or forty acres, &c., either of which would have brought the amount required to be made, &c.: that said petitioners, nor either of them, had any notice of said sale : that they have not assented to the sale : that this is the first opportunity they have had of applying to set it aside, and they tender the amount of purchase money, &e.

This petition was accompanied by a notice to Roderick Matson and Charles Matson, and Jasper N. Bell, that amotion to set aside said sale would be made; and an affidavit of said Mead and others, the petitioners, which stated in substance, that the.y are citizens of St. Louis, and liad no notice of the sale, &c., and did not direct the sheriff to sell the whole tract, and other matters substantially the same contained in the petition.

The motion was overruled, and exceptions were taken, and the cause is brought here by writ error.

The judgment of the circuit court must be affirmed. Whatever merits there may be in the case, it is plain that there is nothing preserved by the record, from which this court can see whether the circuit court erred or not. No evidence whatever is preserved by the bill of exceptions. It does not appear, whether the sheriff had executed a deed for this land or not; nor, indeed, can we conjecture upon what grounds the cicruit court acted. We must presume that court decided correctly until the contrary appears.

Judgment affirmed.