14 Mo. 153 | Mo. | 1851
delivered tile opinion of the court.
This was a proceeding to obtain an injunction against a judgment at law rendered against the complainants.. The judgment sought to be enjoined, had been obtained upon a bond given by Owsley, and his. securities for the last installment of the purchase money of a tract of land sold by the sheriff under an order of court. This sale was the result of proceedings for a partition, between the heirs of Hawkins Smith.
The ground upon.which the complainants asked the interposition of the court was, that the title to a portion of the land was not valid.
A demurrer was filed, but was overruled. • - After the answer was filed and a cross-bill put in, various proceedings were had with a view to perfect the title before the hearing, and this having been acomplished in the opinion of the chancellor, the bill was dismissed, and damages awarded. , ' ' .
We shall not enter into any investigation of the merits of the title, which constituted the only ground of dispute in the circuit court. Such an enquiry would be useless in the view we-have taken of the character of these sales under the partition law of this State.
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 is made', no warranty attends the sale, nor is any authorized. The sheriff is required to sell, as in case of ordinary exe
The act makes ample provision for an investigation of the title. If any person other than the petitioners or defendants, claims any interest, he can be made a party, and his claims be adjudicated. The petition must set out the rights of the' parties, as far as they are known, and the court has full power to investigate the matter.
To permit a purchaser to come in after the close' of these proceedings, and set up a title in some one who has never and may never assert it himself, with a view to avoid the payment of the purchase money, would be productive of great mischief. The records of the court show the title, as known to the parties, and its value may be as easily ascertained by the. purchaser as in any other case of execution sales. In the present case the complainant states in his bill, that Hawkins Smith, in the year 1823, instituted a proceeding to perfect his title, and alleges that this proceeding was fruitless. This proceeding, whatever may have been its value, was spread upon the records of the country, and was open to public investigation. The purchaser was as competent to determine its efficiency as the heirs of Hawkins Smith.
Undoubtedly the courts will not permit a fraud to be committed. If the parties whose interests are ordered to be sold are guilty of any fraudulent concealment or misrepresentation, or choose voluntarily to guaranty the litle, the purchaser at the sheriff’s sale would occupy a different position from the present complainants. There is no pretence of fraud here, except that the petition represented Hawkins Smith to have died seized in fee simple of the land sold, and this is alleged not to be true. Hawkins Smith had purchased the New Madrid certificate by virtue of which this land was located, and had occupied the land nearly thirty years, claiming it as his own. It is now said that the purchase was unavailing, and the title of Pendergrass (from whose administrator Smith claimed) still remains in his heirs. The petition of Smith’s heirs may have|been, in this respect insufficient, but such an imperfect statement of the title, is no evidence of fraud, or of the slightest misrepresentation. The title was doubtless believed to be good, and at all events, the complainants had as good an opportunity of investigating
Decree affirmed.
