Wauchope v. McCormick

• Decision Date: 11 December 1900
• Citation: 59 S.W. 970,158 Mo. 660
• Parties: WAUCHOPE et al. v. McCORMICK et al.; PERKINS, Appellant
• Court: Missouri Supreme Court

59 S.W. 970

158 Mo. 660

WAUCHOPE et al. v. McCORMICK et al.; PERKINS, Appellant

Supreme Court of Missouri, First Division

December 11, 1900

Appeal from Buchanan Circuit Court. -- Hon. Charles F. Strop, Judge.

Affirmed.

James M. Wilson for appellant.

(1) In partition sales, all the parties to the proceeding, as well as the purchasers, are entitled to the protection of the court. Goode v. Crow, 51 Mo. 212. (2) While the approval of a partition sale rests largely in the discretion of the trial court, mere inadequacy of price is not sufficient ground upon which to set aside the sale. 17 Am. and Eng. Ency. of Law, 795. (3) But in the case at bar the court set aside the sale in order that the property might have the benefit of an advanced market predicted by the experts. This was clearly an abuse of discretion. If the experts should continue to be of an optimistic turn of mind the second sale might be set aside under this view, and so on ad infinitum. (4) The Supreme Court will review the decisions of inferior courts on motions, although the point of law be not specifically stated in the bill of exceptions, nor a motion for a new trial made. 2 Thompson on Trials, sec. 2716; St. Louis v. Brown, 107 Mo. 380; Bruce v Vogel, 38 Mo. 100; Johnson v. Latta, 84 Mo 143; Stagle v. Murdock, 65 Mo. 524; Parker v. Waugh, 34 Mo. 340.

T. J. Porter and H. K. White for respondents.

(1) The appeal taken in this case was improvidently allowed and it should be dismissed. Laws 1891, p. 70; Laws 1895, p. 91; R. S. 1899, sec. 806; Buller v. Linzee, 100 Mo. 95; Goode v. Lewis, 118 Mo. 361. (2) Approval of sale made under process of the court is a matter of discretion, and the appellate courts will not interfere in such cases unless abuse of discretion is shown. Brolaski v. Putnam, 34 Mo. 459; Eidemiller v. Kump, 61 Mo. 340; Griffin v. Felt, 56 Mo. 310. This general principle has been applied in partition cases. Rannels v. Washington University, 96 Mo. 226; Anderson v. Ragan, 105 Mo. 406. This rule is especially applicable in cases where the rights of minors are involved. Pomeroy v. Allen, 60 Mo. 530; Mitchell v. Jones, 50 Mo. 438; 17 Am. and Eng. Ency. of Law, 797. (3) In view of the fact that many persons were present and that but few were bidding, the doubt as to the validity of the sale on account of the adjournment of both divisions of the court, justified the court in setting aside the sale, when this doubt is considered in connection with the inadequacy of the price. Hardware Co. v. Building Co., 132 Mo. 454; Goode v. Crow, 51 Mo. 212; 17 Am. and Eng. Ency. of Law, 796.

OPINION

BRACE, P. J.

This is an appeal by Rosa Perkins, a purchaser of real estate at a sale in partition in the above entitled cause, from an order of the circuit court of Buchanan county, in which the suit was pending, setting aside the sale at which she purchased. Upon the report of the sale by the sheriff coming in, showing that the real estate described in the report was sold in pursuance of the order of the court on the 6th day of November, 1897, and that the said Rosa Perkins became the purchaser of a portion thereof at the price of $ 1,030, and had complied with the terms of the sale, the defendants in said suit filed their motion as follows:

"Come now defendants, Anna E. McCormick, Wesley McCormick and Lester McCormick, the two latter defendants appearing by H. K. White, their next friend in this suit, and ask the court to disapprove of the sale made by the sheriff of Buchanan county, Missouri, pursuant to the order of sale issued from this court at this term, so far as the same affects lots nine and ten in block sixty-two in St. Joseph Extension addition to the city of St. Joseph, Buchanan county, Missouri, for the following reasons, to-wit:

"1st. Because the price paid for said property, to-wit, ten hundred and thirty dollars is grossly inadequate in proportion to the real value thereof.

"2d. Because the sale was made at the time when neither division of the circuit court was in session, division number one being adjourned for the term, division number two being adjourned for a period of several weeks, and thereby parties were deterred from bidding, fearing that the title to be made under such sale would be invalid.

"Wherefore, these defendants ask that said sale be set aside and that the property above mentioned be resold at the next term of this court, and the proceeds distributed accordingly to the orders and decrees therein made."

On the hearing of the motion it was admitted that the sale was made on Saturday, the 6th of November, 1897. That on the Tuesday before the sale Division No. 1 of said court had been adjourned to court in course, and Division No. 2 had been adjourned until the 15th of November, 1897, and there was evidence tending to prove that the property was worth from $ 1,750 to $ 2,000, at the date of the sale.

Mr. Simmons, an attorney at law, who was present at the sale testified as follows:

"I think I asked someone if the court was in session at the time of the sale, and I asked it thinking myself whether it would have any effect, and what the effect would be upon the validity of the sale. I made no expression with a view of influencing anybody else. I don't know that I expressed an opinion as to what its effect would be except in the form of a question, 'Would the sale be valid?' or something like that."

He further testified that the fact that the court was not in session had an influence upon him. It caused a doubt in his mind. "He had no certain information about it, but it caused a doubt about the validity of the sale, and he spoke about it at the time right there," that "the question as to the court being in session was in his mind before he went to the court house, and that he understood court was not in session from his general knowledge of the court;" that "he was of the opinion that the sale should be as an execution sale and he understood that to require the session of the court;" that "he knew that it was a matter of difference of opinion among the lawyers of the St. Joseph Bar, as to whether sales under such circumstances were good, that he had heard lawyers express different opinions about it, though he did not know whether the lawyers expressing the opinions had studied the question much or not."

Another witness, Mr. Brown, engaged in the real estate business, who was one of the bidders at the sale, and bought one of the other lots, testified that the property in controversy was worth $ 1,700, and that he heard Mr. Simmons "make a remark at the time of the sale about the court not being in session, and that he didn't know whether the title would be good or not."

The court sustained the motion, entered judgment thereon, setting the sale aside, and renewing the original order of sale, to which action of the court the appellant excepted, and thereupon perfected her appeal.

It further appears (from the abstract of the respondent) that at the January term, 1898, of said court, a sale made under the renewed order was approved by the court over the objection of the appellant, to which action of the court no exceptions were filed or appeal taken. But we do not see that this appeal is in any way affected by these subsequent proceedings.

(1) Counsel for respondents contend that the appeal in this case was improvidently allowed and should be dismissed. This contention is based upon the wording of section 806, Revised Statutes 1899, Laws, 1895, p. 91, by which it is provided that, "any party to a suit aggrieved by any judgment of any circuit court in any civil cause . . . . may take his appeal . . . . from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause." The argument in support of the contention is predicated on the change made in the phraseology of the section of which it is amendatory, reading as follows: "Every person aggrieved by any final judgment or decision of any ...