33 Mo. 103 | Mo. | 1862
delivered the opinion of the court.
This is a suit brought to recover the 'third instalment of the purchase price of two lots of land in the St. Charles common, sold to the defendant by the plaintiff, as sheriff of St. Charles county, under an order of sale in partition on the application of George C. Sibley and others, proprietors.
The property was bid off by the defendant, who refused to complete the purchase, but for what reason does not appear. The sheriff reported the sale, and the refusal of the defendant to comply with its terms, to the court from which the order emanated; whereupon, the court, against the objections of the parties in'the partition, renewed the order of sale, and under it the sheriff re-advertised, but before a second sale the parties to the partition suit arrested further proceedings, and this action was brought to enforce the defendant’s contract. It does not appear the court set aside the first sale.
On the trial the defendant established the facts as above detailed in regard to the sheriff’s report, the new order and re-advertisement, and then asked the court to make the following declaration of law, to wit: “ If the sheriff, in pursuance of an order of court, re-advertised the land in question for sale, it amounts to an abandonment of the former sale, and the defendant is entitled to a verdict.” The court refused, and its refusal is the only ground of error complained of. '
Is it true, as a proposition of law, that the re-advertisement under the new order worked a discharge of the defendant from the obligation of his contract ? We are referred to no authority in support of it, nor do we see any reason to sustain it.
In partition sales the sheriff is the agent of the vendor, with powers defined and limited by law. He can do only what the law permits him, and in such manner as the law requires. He has power to make a contract of sale, but he has no power when made to abrogate it. The moment the contract is made the beneficial interest in it vests in the vendor, of which the sheriff has no power to divest him without his consent. That the beneficiaries might have abandoned the contract when the defendant refused to comply with its terms on his part is not denied; but the question raised by the instruction is not whether they could abandon, but whether the sheriff had not done it for them, and in despite of them, merely by a re-advertisement. The instruction was properly refused, and inasmuch as the defendant urges no justification or excuse whatever for his non-compliance with his contract, the judgment will be affirmed, with ten per cent, damages.