10 Mo. App. 469 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This was a motion to set aside a sale of real estate made by the sheriff of the county of St. Louis by virtue of an execution issued on a judgment in favor of plaintiff upon a special tax-bill. The land was sold under two executions, one in favor of Sheehan, and the other in favor of Corneli, and against the same defendants. In each case the motion
The land in controversy originally belonged to William Stackhouse, who owned a strip several hundred feet in length from east to west, and one hundred and ninety feet in width from north to south, in which strip was included the land in controversy. On the death of William Stackliouse, his widow, Hannah B. Stackhouse, and his five children joined in a conveyance to Henry J. Stoul, of Philadelphia, of this with other property. This conveyance was in trust, and the deed provided that, after the payment of taxes, said trustee should pay to the widow $800 of the rents, to the five children the next $1,500, and the surplus over $2,300 to the widow and children equally; the property to be conveyed to the five children on the death of the widow. This deed was duly recorded. The widow and children are all non-residents. An ordinance of the city was passed to open Twenty-seventh and Twenty-eighth Streets through this strip of land. The condemnation proceedings were commenced against “ Hannah B. Stackhouse’s trustee,” who was not named, nor was he, or any of the children of William Stackhouse, made a party to these proceedings. The writ was returned “ not found,” and publication was made against “ Hannah B. Stackhouse’s trustee.” In these proceedings (of which appellants never heard for some years after they were consummated), benefits were assessed in excess of damages ; and the land commissioner gave judgment for the surplus. Under this judgment, the entire Stackhouse tract was sold, and bid in by the city. The two streets were graded and paved through the property, cutting off a narrow strip east of Twenty-seventh Street, and another west of Twenty-eighth Street. Special tax-bills were delivered to the plaintiffs in these two actions, who were contractors for the work. On these bills suits were begun against four-fifths of the Stack-house heirs, by attachment and publication. Corneli sued
On the hearing of the motions, respondents introduced, against the exceptions of appellants, the marshal’s deed
The statement of counsel for appellants has been substantially adopted, with such variations as the oral testimony as to values seemed to require.
The provision of law (Rev. Stats., sect. 2368) that, where an execution is levied upon real estate, the sheriff shall divide the same, if susceptible of division, and sell so much thereof as will .be sufficient to satisfy the execution, is directory merely; and where he who seeks to sustain the method of sale pursued by the officer, shows its justice and expediency, the sale will not be disturbed on the ground that there was no subdivision.
The case seems to be one of hardship. But, after all, .appellants seem to have had notice of these proceedings in time to assert their rights, and to have neglected to do so. There was no diligence in making these motions ; and there seems to have been an extraordinary delay in prosecuting them. Nevertheless, the case is one in which we would gladly interfere to set aside the sale, could it be done on legal principles. The question whether the Circuit Court erred in refusing to sustain the motion on the evidence before it, must be answered in the negative. Nor do we see that any error to the prejudice of appellants was committed •in the admission or exclusion of testimony.
The judgment is affirmed.