Nelson v. Brown, 23 Mo. 13

Nelson v. Brown

23 Mo. 13 | Mo. | 1856

Soott, Judge,

delivered the opinion of the court.

As this was a motion to set aside the proceedings under an execution issued from the Circuit Court of St. Louis county, that court was the proper forum for such an application. Every court has the exclusive control of its process, and no other tribunal can properly interfere with it. (Pettus v. Elgin, 11 Mo. 411; McDonald v. Tieman, 17 Mo. 604.) There is therefore nothing in the point, that, as this proceeding involved the validity of a sheriff’s deed, which conveyed title to real es - tate, it should have been begun in the St. Louis Land Court.

*20It would seem on principle, that motions to set aside proceedings under an execution should be made during the return term of the writ, as after that time the power of the court is at an end. After the term, the proper course is by a bill in the nature of a suit in equity, wherein all the parties interested or concerned are brought before the court. Courts of law now, on motion, give parties the benefit of a writ of error, coram vobis or audita querela, and those remedies may be prosecuted within the time within which a writ of error may be sued out. But proceedings to set aside the return of final process for irregularity in its execution, must not be confounded with the relief afforded by the writ of error, coram vobis or audita querela. On such process, executions are frequently set aside, but it is for such irregularities in the previous proceedings in the cause, or for such want of correspondence between the writ and the judgment, as renders it void. It is plain that a writ of error, of any hind, would not lie for acts done by a sheriff in the execution of process entrusted to him. His conduct and acts would be matters en pais nowhere appearing from any record or return, and could only be brought to the notice of the court by a rule or motion, or by a proceeding on the equity side of the court.

We regard this case as so circumstanced that it does not fall within the rule above stated. It would be very hard to deprive a party of his remedy by motion, when no return has been made t'o the writ, and the party affected by it is wholly without notice. There was in fact no return of the writ until during the term in which this motion was made. The filing of the writ without any endorsement upon it, showing the manner in which it was executed, is no return. During the term at which the return was in fact filed, this motion was made. As the court lent its aid in permitting a return then to be made, by which it appeared for the first time that the writ had been executed, the incidental power of quashing that return for irregularity in the proceedings of the officer, followed as a consequence.

*21Parties can not complain, with any show of reason, if courts narrowly scan proceedings by which an estate worth $4000 has been sacrificed by its officers for nine dollars. The bare statement of the proposition is enough to show that there must have been some wrong somewhere. There is no innocent purchaser here. The plaintiff in the execution becomes the purchaser at the sale for his own benefit; is present and privy to all that transpires. Under such circumstances, he is a purchaser with notice in fact, and is affected by the irregularities which occurred. We do not maintain that mere inadequacy of price is sufficient to set aside a sheriff’s sale. But where there is a gross inadequacy of price, courts will require that there be a strict regularity in the proceedings. The irregularities attending the sale in question were such that it must be set aside.

There is one strong circumstance in this case, which can not but strike every one who considers it. It does not appear that the defendant in the execution was privy to its levy or to the sale which took place under it. When a man’s homestead is sold under an execution, without any notice on his part, there is generally something wrong. Officers of the law should so conduct themselves as to avoid such results. There is nothing in the case which shows that it was the defendant’s fault that he was ignorant of the levy. The fact stated by the deputy sheriff, on his examination in court, that the land sold for twelve dollars, while it appears from his return that it only brought nine dollars, is a circumstance sufficient, in a case like this, to awaken suspicion. But the manner in which this occurred shows that there was an irregularity in the sale. The deputy sheriff says that one lot was sold for five dollars ; that he sold the second lot described in the notice and struck it off to the plaintiff for the sum of seven dollars, or so much as the expenses of the sale, together with the clerk’s fees for issuing the execution, would amount to. The plaintiff in the execution bid seven dollars on the second lot and he struck it off to him at that price, with the understanding that the amount should be increased or lessened to just the amount of the expenses of the sale, includ*22ing the clerk’s fee as above. Who ever heard of such a proceeding between the sheriff and the plaintiff in an execution in selling an absent debtor’s land, as is here detailed ? Was such a mode of bidding at a sheriff’s sale lawful ? What was better calculated to inspire mistrust in the bystanders ? What right had the sheriff to take an unascertained amount as the sum bid ? What right had he to cry in the hearing of the attendants that the sum bid was seven dollars, when it was only four ? Will it be said that the difference is too small to be noticed ? But when a man’s estate, worth four thousand dollars, is sold for nine dollars, is he to be told he must not stand on a few dollars ? Surely, when dollars cost so dear, he is justified in cavilling for one half cent. Indeed, the whole transaction can only be explained on the supposition that the deputy sheriff and the plaintiff in the execution conceived the idea and acted on it, that they had a right to deal with the defendant’s land as they pleased. The judgment will be reversed, and this court gives judgment that the rule on defendant (Nelson) be made absolute, and that the sale and all the proceedings under it, including the deed, be set aside, and for costs.

Judge Byland concurring.