46 Mo. 314 | Mo. | 1870
delivered the opinion of the court.
The heirs of Andrew Hanna presented to the Randolph Circuit Court their petition for partition of about eighty acres of land, and obtained an order of sale under section 59 of the partition act. The order was issued and the sale made at the same term, and at the' next term a portion of the petitioners moved to set aside the sale, claiming it to have been irregular, inasmuch as it was made at an adjournment of the same term wherein the order was made, and without the knowledge of any of the parties except John F. Hanna, who bid off the property; also,, that it was sold for much less than its value, and for less than half the amount it would have brought had the parties been advised of it; that fraudulent contrivances were resorted to, to keep those interested from knowing of the sale, and to keep those present from bidding; that legal notice was not given, etc. The motion was overruled, and the matter comes up by appeal.
This was not an adversary proceeding; no dispute arose in relation to title, and the shares of each party were ascertained without controversy. One attorney acted originally for all. In these proceedings the utmost fairness and good faith should be observed, and if, from accident, mistake, or any cause, the parties interested have been prevented from looking after their interest, and the property has been sacrificed, a sound exercise of
Tho alleged irregularity in the time of the sale is not so clear. The statute expressly provides that the order of sale shall not specify the time, but that the sheriff shall sell upon some day of the term, and that the order shall designate whether it shall be a term of the Circuit or County Court. (Partition act, §§ 31, 66.) It also provides that the sale shall be governed by the regulations prescribed for sales of real estate under execution, and section 38 requires the sheriff, after completing tho sales, to report his proceedings to court. Although the general custom is to sell and make report at the next term after the order, I find nothing in the statute requiring 'it; and to apply to orders of sale in partition the provision "in relation to the return of executions, would contradict the spirit at least, if not the letter, of the prohibition
Objection upon argument is made to the order because it did not conform to section 63 by directing whether the sale should be had at a term of the Circuit or County Court. This irregularity could not vitiatoMie title under the sale, yet the provision is one' which the-court is bound to notice, and should amend its order to conform to it.
The judgment of the District Court affirming that of the Circuit Court is reversed, the sale is set aside, and the cause remanded.