Durfee v. Moran

Decision Date31 August 1874
PartiesJOSEPH DURFEE and WM. H. BARTLETT, Plaintiffs in Error, v. DAVID MORAN, et al., Defendants in Error.
CourtMissouri Supreme Court

Error to Andrew Circuit Court.

Bennett Pike & H. K. White, for Plaintiffs in Error.

I. The cases which seem to decide that a sale made under a satisfied judgment is absolutely void will not be found to sustain this position. In few of them was the question before the court for determination, and, in these, knowledge of the satisfaction was shown to have been acquired by the purchaser before purchase. (See Swan vs. Saddlemire, 8 Wend., 676; Lewis vs. Palmer, 6 Wend., 676: Wood vs. Colvin, 2 Hill, 566; State vs. Salyers, 19 Ind., 432.) The case of Durette vs. Briggs is no exception. In this case the party purchasing had the means of knowing of the sale of sufficient property to satisfy the only valid execution. (Durette vs. Briggs, 47 Mo., 356.)

Heren & Rea, for Defendants in Error.

I. The price was so inadequate in this case, that it affords strong grounds for the presumption of frand, and in such case the court will narrowly scan all the attendant circumstances. (Nelson vs. Brown, 23 Mo., 13; Parker vs. Han. and St. Joe Railroad Co., 44 Mo., 415; Clarkson vs. Creely, 35 Mo., 95; White vs. Damon, 7 Ves., Jr., p. 30.)

II. In equity cases, declarations of law are improper. (Gill vs. Clark, 54 Mo., 415.)

III. The judgment under which the land was sold had been satisfied and the sale was therefore void and passed no title. (See Weston, vs. Clark, 37 Mo., 568; Peck vs. Tiffany, 2 N. Y., 451; Craft vs. Merrill, 14 N. Y., 456 and cases therein cited.)

WAGNER, Judge, delivered the opinion of the court.

This was an action of ejectment brought in the Andrew Circuit Court to recover the possession of certain real estate situated therein.

The defendants, Jackson, James C. and Margaret Abney filed their joint answer denying the allegations in the petition, and setting up ownership of the lands in the defendant Margaret Abney. They then made a further equitable defense, and charged that all the claim and interest plaintiffs had in the land they acquired by and through a sheriff's sale and deed, made to the plaintiff Bartlett by the sheriff of Andrew county, on a judgment rendered in the Circuit Court of that county, in favor of Arnold, against the defendants Jackson and James C. Abney, for the sum of $476.03 debt, and $7.85 costs; that the said Jackson and James C. Abney made an agreement with the plaintiffs in the judgment, that they would pay them the sum of $250, on the judgment, the costs and attorney's fee, which was to be taken as full satisfaction; that at this time the Abneys lived in the Territory of Colorado, and the plaintiffs in the judgment were living in the city of Philadelphia, at which places both parties continued to reside till after the sheriff's sale; that in pursuance of the agreement, the Abneys forwarded to Rufus McDonald, in the city of St. Joseph, an agent of the firm of Arnold, the sum of $270.00 to pay off the judgment according to the agreement, and that McDonald received the same, and paid $250.00 to Arnold, the plaintiff in the judgment, but failed to cause said judgment to be satisfied on the records of the court; that the Abneys, after they had paid said sum of $270.00, believed that the judgment had been satisfied in full, and knew nothing of the issuing of the execution and the sale of the lands by the sheriff until long after the sale was made.

It is further alleged that the plaintiffs in the judgment did not cause the execution to be issued, and the lands sold; but that the same was done at the instance of Bartlett, the plaintiff herein. The charge is also made that there was an agreement by Bartlett with J. W. Strong, on the day of the sheriff's sale, that if Strong would refrain from bidding against him he would let Strong have an interest in the land, which agreement was carried out between the parties. It was averred that the land was worth over $4,600.00 and the plaintiff bought it in for $7.74, and that at the time of issuing execution, the defendant, Margaret Abney, owned one half of it in fee, and that since that time the other half had been conveyed to her. The answer then tendered to the plaintiff the amount of his bid and interest thereon, and asked for a decree setting aside the sheriff's deed, and divesting the title out of the plaintiffs and vesting it in the said Margaret.

A replication was filed, admitting that the defendant Margaret owned one-half of the real estate; but there was a denial of all the other material charges and averments in the answer.

Upon the exhibits and proofs offered in evidence the court rendered a decree in accordance with the prayer of the defendants.

Complaint is made here in reference to instructions or declarations of law given by the court; but as the answer interposed an equitable defense, and the court tried the cause as a chancellor, we will pay very little regard to any declarations asked or given.

The testimony mainly, though not entirely, sustained the allegations in the answer. The proof as exhibited in McDonald's deposition, is very explicit in reference to the compromise spoken of, and the payment of the money. It shows that the firm of Arnold wrote to him and authorized him to receive from the Abneys the sum of...

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56 cases
  • Abrams v. Scott
    • United States
    • Missouri Supreme Court
    • April 12, 1948
    ... ... private sale, having the effect of preventing competition in ... bidding, is against the policy of the law. Durfee v ... Moran, 57 Mo. 374, l.c. 379. (15) As a director in the ... owner company Scott occupied a position of trust and owned ... his stockholders ... ...
  • State ex rel. Ford v. Hogan
    • United States
    • Missouri Supreme Court
    • April 7, 1930
    ... ... Giefing, 289 S.W. 828; Briant v ... Jackson, 99 Mo. 585; Railroad v. Brown, 43 Mo ... 249; Curd v. Lackland, 49 Mo. 451; Durfee v ... Moran, 57 Mo. 374; Phillips v. Stewart, 59 Mo ... 291; Walters v. Herman, 90 Mo. 529; Hardwich v ... Hamilton, 121 Mo. 465; Knoop ... ...
  • Wertheimer-Swartz Shoe Company v. Wyble
    • United States
    • Missouri Supreme Court
    • November 17, 1914
    ...a fair disposition of his property and substitutes its appropriation by the combination without any consideration whatever. In Durfee v. Moran, 57 Mo. 374, 379, considering the same question we said: "That the price was grossly inadequate there can be no doubt, and although it is true that ......
  • McDonnell v. De Soto Savings And Building Association
    • United States
    • Missouri Supreme Court
    • June 9, 1903
    ... ... 508; Cole Co. v ... Madden, 91 Mo. 614; Vail v. Jacobs, 62 Mo. 130; ... Stoffle v. Schroeder, 62 Mo. 147; Durfree v ... Moran, 57 Mo. 374; Thornton v. Irwin, 43 Mo ... 153; Railroad v. Brown, 43 Mo. 294; Holmes v ... Fresh, 9 Mo. 201. (7) It is held in the cases: ... ...
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