*1 Undеrtaking Ambruster Wm. Company; by the appellant respondent Edith from the recover have and Lindsay Seddon, $2475, costs. sum of Ambruster E. GO., concur. adopted EllisON, C., foregoing PER CURIAM: The judges concur. All of the court. the.opinion of Koeln, Collectоr o to Use Edmond at Relation
The State f Respondent; Sanders, Movent and Louis, v. City of St. Lillian Sale, Appellant. at Tax Purchaser William J. (2d) 986. W. S. One, September 1930.
Division *2 Louis H. Brener and Frank appellant. Coffman respondent. Hall <&Dame for *3 from apрeal an order LINDSAY,.-C. is an This of estate, by made the sheriff setting the sale of certain real against Lillian issued an execution city St. Louis under of delinquent judgment for upon a property, owner of the Sanders as 1, 1923, $729.99 was for The renderеd June taxes. De- thereon, returnable Afterward, execution issued costs. property the sale term, 1926. After due advertisement cember pur- Helming was the J. 25, 1926. William October was made on $1035, paid sum to sale, of price said chasеr at purchaser. a deed to the executed 8, 1926, who, November on throughout described described and was question is property in The No. City Block “A mentioned, follows: lot proceedings by a Place Windsor frontage seventy-fivе on feet having a 3709 by alley, the east on north feet; on the bounded depth’of the' and on Windsor Place Street, on south Alphonsus St. Louis, Missouri.” city St. by H'agedorn, west made, which the sale was during term at 1926, 27, On November
. aside said set her motion tо filed Lillian Sanders in the ground stated The essential made thereunder. easily solido, when the same was was sold in property parts; being sold susceptible of divided and reasonably sold easily been which could have property greater value much remainder, was of market separate from expenses to be made all costs and judgment and than the amount alleged here, movent, respondent The property. out of having thereon a improved, property was part of the west month, per $100 value of rental which had house double brick lying unimproved part of vacant and that abutting St. length feet on had house of said the east having width and part, vacant Street, and Alphonsus more, thirty-five feet, thirty or Place of frontage Windsor executing practicable method aas sold easily have been could writ. alleged market value of the entire ex- ground, $10,000, any value of the without ceedеd and that the frontage seventy-five improvements, rated its feet on Windsor frontage. foot such Place, was in excess of J. On William at November a deed of trust one Otto executed McCoy, purporting to Karbe, trustee, in favоr of one Anna N. $7,500, in the promissory *4 hearing, later, the upon as that stated now erty. well be It can as was trust testimony that in his Helming admitted Mr. was no more its execution consideration, and that wholly without put forth defense is No voluntary act. аnd individual his than transaction, no and upon that Helming based Mr. by appeal on thereto. made be need reference further only parties the
It results that to be considered are the Sanders,' purchaser, and Lillian in the defendant the execution. regularity pro- is a colored The Lillian Sanders woman. the culminating question. in ceedings in sale is not solution the The before, actually question upon in issue the trial court turned the offering selling in an act of the as circumstances shown in the evidence. The entirety, in view of the appeal to be considered is the correctness and question sole setting in court the trial aside the sale of the action propriety setting in shown. The court the circumstances under price paid for pay required sale 80 for use. amount The pay the into court property, or 'to same time prescribed. within the paid into court
was provisions in view of controversy is to determined be The statutory and certain other 1919, Revised Statutes 1637, Section in record. evidence hereafter, mentioned provisions to be follows: Section
‘'When execution estate, shall be levied officеr real 'levying the property, susceptible shall such same divide if divi- sion, and much satisfy sell so thereof as will be sufficient to such execution, unless the defendant in shall the execution desire any whole of tract or together, lot land to sold in which case be it shall be accordingly.” sold Procedure,
This Civil applies section is a of the Code section, generally germane under to sales execution. As to that legislative intent, considering pertinent indicative of the in issue, we Revised Statutes sale here refer also Section judgment concerning suit to be rendered in a delin- for specifies taxes. section shall be stated quent back That what against suit for de- in a rendered the defendant that provides, among things, It other linquent and back taxes. against defendant, ... shall if state “the estate, necessary thereof or so much the real sold, special costs, be judgment, interest and such fieri facias issued therеon.” shall be request tract the whole at bar there no In the case the sale, was not at The defendant be sold. she not and testified did any by one at represented not it been sale or that had was advertised know days after by few purchaser, fact until sold, informed sale. Section has been nu- under consideration in court this 342, In merous cases. Franklin, Shelton v. Mo. the effect by by statute Banc, was considered in an Court en J., prior discussed, extensively decisions were Graves, governing rules deduced In case the therefrom were stated. subject equity, of a con- direct attack a bill but the attack made clusions stated and the elements successful are sort, applicable in an in an attack alike attack (1. 363)': motion. was said c. (1) we “From cases take the rule to the statute some, officer, directory, (2) it discretion is allowed the
(3) be and should reviewed may that an abuse of discretion this equity, aby or attack bill upon direct court the either time, (5) (4) be made seasonable attack should this only sale is in solido of the sheriff’s discretion the abuse irregularity may wbicb render the voidable and not sale void.
"To these conclusions added the attack bill equity good against subsequent knowledge is with or notice of the violation unwarranted of the sheriff’s discretion and knowledge injury thereby* or notice of the the done execution debtor
"So that authorities, quеstion under these the deed in void is not upon discussion, its for the reason now face under but plaintiff (1) .a voidable. To make would have to a.case show (2) sólido, discretion-lodged that such was abuse with sheriff, (3) consequent damage injury to against debtor,- (4) (5) application redress, if a seasonable - knowledge part subsequent grantee notice of the things preceding paragraph, reiterated- in the. mentioned in the subjects in paragraph.” first three numbеred Under the facts in record there was before the trial court question virtually only one of whether there was an. abuse —that lodged of the discretion with the sheriff. The evidence shows, with- dispute, out property was offered for sale only as an entirety and was so sold. Coneededly, the application of the re- spondent to seasonably set the sale was made;'and the evh respondent strongly dence for tends to show that the propеrty was readily susceptible of parts; division into two that the value market property of the approximately entire was $10,000; -division that-a ground of the vacant made, affording severance could have been frontagе approximately thirty-five feet Windsor Place running along back feet Alphonsus Street, St. and that ground, unimproved, market value of the was front foot frontage Place; consequence its on Windsor as a of -the sale n damаge injury respondent. in solido there was Upon' question property, particularly of the of the value the vacant- part, appellant introduced counter court some evidence. The trial division, finding susceptible mаde a carrying improvement half of the lot west double -residence —the thereon,- $8,500, and that east the- value half of —was covering lot, unimproved part, $1,500; the value of enough improved that the could have been sold fоr more than least,, costs, leaving respondent, at weight unimproved part. The evidence to that effect. phase emphasized We will a certain other of the evidence mention im- shows that by his brief. The evidence thirty dwеlling house, had been about provement, the double erected was, neighborhood years; formerly, a desirable residence at time city, people, later, for white but that section of the ;as situated, well block in which thе was. adjacent, given over to colored other as some *6 CQ 'OO situated evidence, shows that this is however,
people. The Avenue, an from Grand block west of one short distance at a city to Grand nearness St. Louis. Its in the of important street value, by the severаl element regarded as substantial Avenue by respond- business, and called engaged real estate in the witnesses for im- rental return testified ent. The month. part proved involving question here under cases a few of the We mention 397; Gordon v. Mo. Yancy, v. ex rel. State consideration: Schmidt, 304; 126 Mo. Yeaman v. Corrigan v. 350; O’Neil, 96 Mo. 936. to Wilks, 288 S. W. It is also 61; Mason Lepp, 167 Mo. v. made under an sale was that since the in this case considered be court, had control that court cirсuit out of the issued Davidson, rel. v. injustice. ex prevent to process [State its own over App. Mo. and cases Innes, v. ex rel. 549; 315 Mo. State there cited.] may granted suggested as counsel
It inadequacy price ground for setting is a sale mere not But, inadequacy price under execution. is a fact considered tending impeach when there other circumstances the fairness are to be considered in kind in the sale. case of this view statute, expressed entirety. and the policy sale as an Vaughan, In v. Mo. it held a motion such Holden here, is to law of the -court. also we have addressed side See as Davidson, Innes, supra. supra; State ex v. Clear- rel. v. rel. State ex this, сonsideration, inadequacy of feasi- such’ and the ly, in cases having selling a value sufficient bility determining execution, considered are may say, question, rather, of two of we existence ultimate One, damage that of in the Shelton case: stated the elements part of for sale a the failure to offer defendant the execution lodged in the other, discretion abuse property; entirety. we property only as an As selling offering to the law side of the as addressed taking it, and view supported of the court are findings court, of control Likewise, as the exercise if viewed substantial evidence. injustice prevention of in the process its own court over sup- aсtion of the court equitable principles, having in view evidence. weight of the greater by the ported Ellison, GO., Seddon, and is affirmed. It results concur. commis- former by our written opinion PER CURIAM: This adopted as the D. LiNdsay, late
sioner, James сoncur. judges All the court. notes sum payment secure day it was executed. filed for record on deed of trust was said October during the same term —the 3, 1926, and On December setting supplemental motion filed term, 1926—Lillian Sanders her trust, alleging it was said deed up the execution faith, consideration, -bad and executed without fictitious and rightful prop- clouding title to her purpose of the sole and for