25 Mo. 572 | Mo. | 1857
Lead Opinion
delivered the opinion of the court.
In the case of Owsley et al. v. Smith’s heirs, 14 Mo. 153, this court held that in partition sales under our statute there was no warranty of title. This decision is based upon the particular phraseology of our statute, and seems to have been acquiesced in. No case has been brought up to this court, since that decision, in which the court has been asked to review the subject; nor is it attempted in this case.
Regarding this point as settled, the plaintiff, who was the purchaser of a lot in Palmyra at a partition sale made by a commissioner, applies to the court to set aside so much of the sale as included a part' of the premises he purchased to which it turned out there was no title in the parties to the partition. It seems that the sale was made upon the premises ,* that a portion of the lot was covered by a graveyard; that inquiry was publicly made whether this portion of the lot had ever been conveyed away by the ancestor of the petitioners; and that the commissioner publicly stated “ he did not know; that he had not examined the records; that he only offered to sell whatever title the petitioners might have in the lot.”
It is not doubted that where fraud or misrepresentation has occurred, or where the purchaser has been led into a mistake by the conduct of the seller, a court has ample authority, at all events previous to a confirmation of the report, to set aside the sale. No fraud or misrepresentation is alleged in this case, and the circumstances show that if the purchaser was led into mistake, it was not superinduced by the conduct of the commissioner or the petitioners, but resulted from the grossest negligence of his own. The graveyard was visible, and the subject was inquired into. The deed which had conveyed it was upon record, and the commissioner stated that he had not examined the record. Whether, under these -circumstances, the portion of the lot thus covered with graves was regarded as of any value by the purchaser when he made his bid would not seem very clear. But if the court is justified in setting aside the sale at all, it ought, under such
Dissenting Opinion
dissenting. I do not regard a sale in partition as being similar to a sale on a judgment at law. A sale under an execution is always considered as in invitum. Not so with a sale in partition; but it is a kind of sale by the parties themselves. A sale by partition is becoming in this state a usual mode of conveyance ; and if it should be treated as a sale under a judgment, at which the rule caveat emptor applies, our courts will be made cloaks for many fraudulent contrivances to deceive innocent purchasers. When a title to land has been investigated by a court, and an order for its sale has been made, it is supposed, as the courts would not be made, instruments of fraud, that the parties to the suit in partition have title to the land which is ordered to be sold. Courts should not make partition nor order sales unless they are satisfied that there is a title in those who are seeking its assistance. If it is established that the rule caveat emptor applies to sales in partition, speculators will be emboldened to seek a sale in partition of any tract of land they fancy, in the hope they may entrap the unwary. In judicial sales the courts will relieve purchasers against encumbrancers and defects in title; and why should this form of sale, which is becoming so common and which may so readily be perverted to purposes of fraud, be made an exception ? In the case of Smith v. Brittain, 3 Ired. Eq. 347, it was held that a sale by a clerk and master, under a bill praying the sale of land for partition, is but a mode of sale by the parties themselves. It is not merely a sale by the law, in invitum, of such interests
The case of Owsley et al. v. Smith’s heirs, 14 Mo. 153, has not been overlooked by me.