Neiman v. Early

| Mo. | Mar 15, 1859

Lead Opinion

NaptoN, Judge,

delivered the opinion of the court.

The only question in this case is whether the Land court had power to set aside a sale in partition, at the return term, without notice to the purchaser.

It seems that under the order of the court three several pieces of land were directed to be sold and were sold. A clay or two after the sale and during the term to which the writ was returnable, one of the purchasers of one of the tracts sold came into court and asked to have the sale set aside on account of an alleged misrepresentation as to the title. By consent of the parties interested in the partition, and without any investigation of the title so far as the record shows, the court made an order for a resale, and in the order directed all three of the tracts to be resold. No objection was made to this course at the time, and no exception was taken. Upon the second sale the tract originally purchased by or struck off to Early in the first sale brought about double the sum it did before, and the other tracts brought less, making the aggregate of sales about the same as at first.

The court had power over the execution of its process until the officer returned it, and it is not believed to be .the practice in such cases, or essential to the exercise of the power of the court that the bidders or purchasers should be notified. It is their business to make objections at the proper time and to see to the completion of their title without any formal notice. So long as the term lasts, the matter is in the power of the court to take such steps as under the circumstances may be thought just and prudent. Although we can not see any reason for setting aside the sale to Early, as there seemed to be no connection between his tract or its title and the one which was bought by the dissatisfied purchaser, yet the matter was for the Land court exclusively, and, if objected to, should have been resisted at the time and before a resale was made. "We can see that manifest injustice would be done now, if this court should permit the first sale to Early to stand and yet require the partitioners to submit to all the losses occasioned by the second sale.

Judge Scott concurring, judgment affirmed.

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Dissenting Opinion

RichaRdson, Judge

dissenting. In my opinion, the pur-

chaser ought to have had notice of the proceeding to set aside the sale.