137 Mo. App. 420 | Mo. Ct. App. | 1909
— Appeal from a judgment overruling a motion to set aside an execution sale of a lot in the city of Springfield, under a judgment for the amount of ■the delinquent taxes on the lot for the year 1902, rendered against Rosina I. Kellett and twenty-nine other defendants, as the heirs of Susan Ann Innes, deceased. The tax suit was permitted to correct a flaw in the title and the attorney for Mrs. Kellett looked after the case, wrote the execution on the judgment, had it put in the hands of the sheriff to advertise and sell the property, and told said officer he (said attorney) wished to be •present at the sale, which would occur during the September term of the circuit court, 1905. During the term the attorney for the heirs went to the sheriff’s office and asked a deputy once, or the sheriff, or both, if a day had been fixed for execution sales for taxes and was told no day had been fixed. According to the attorney the deputy agreed to notify him when a sale day was fixed so he (the attorney) could be present and bid in the property for his client, and the attorney, relying on this promise, which was not kept, failed to attend the •sale and the property was sold to other parties for $100; or less than one-fifth its conceded value. A motion was filed in the circuit court before the purchasers had paid their bid, to set aside the sale and was overruled after a hearing. The testimony of the deputy sheriff and that of the attorney for Mrs. Kellett, agreed regarding .inquiries by the attorney about when the sale would take place, but the deputy denied promising to notify the attorney of the day of the sale. On the sale day a man called the deputy’s attention to the fact that Mrs. Kellett’s attorney was interested in the sale and
“Mr. Sheriff, you must not hereafter make any promises to notify attorneys, nor notify them of the time of sale under execution. Let the notice that is published be the only notice given. It is the business of attorneys to look after the executions in which they are interested.”
, Without conceding the sale should be set aside if the sheriff or his deputy promised to inform Mrs. Kellett’s attorney the date it would occur, the attorney for the purchasers argues that as the motion to set aside was overruled and the facts were not expressly found or declarations of law given, the court below must be presumed to have found the promise was not made. The court’s direction to the sheriff to give no promise to notify attorneys of the dates of execution sales in the future, seems rather inconsistent with a finding that none had been given in the present instance, and suggests the motion was determined against appellant for some other reason. But this remark was not equivalent to finding positively the attorney had been promised, and we must dispose of the appeal on the assumption the court below found he had not been. We do this in deference to the decision of the Supreme Court in Holden v. Vaughn, 64 Mo. 588, that a motion to set aside an execution sale lies on the law side of a court, and the evidence taken at the hearing-of such a motion cannot be weighed on appeal. The extent of the contention for
We have examined the cases cited for the purchasers, chief of them being Meir v. Zelle, 31 Mo. 331, and Bailey v. Smock, 61 Mo. 213, and find nothing therein which stands in the way of relief to appellant. In the former there appears to have been no evidence to
Tbe judgment is reversed and tbe cause remanded to be proceeded with in accordance with this opinion.