Yeaman v. Lepp

• Decision Date: 19 February 1902
• Citation: 66 S.W. 957,167 Mo. 61
• Parties: YEAMAN et al., Appellants, v. LEPP
• Court: Missouri Supreme Court

66 S.W. 957

167 Mo. 61

YEAMAN et al., Appellants, v. LEPP

Supreme Court of Missouri, First Division

February 19, 1902

Appeal from Jefferson Circuit Court. -- Hon. Frank R. Dearing Judge.

Reversed and remanded.

Warren D. Isenberg and Joseph G. Williams for appellants.

(1) This is an equity case and the issues presented in it will be reviewed by this court as chancellors. Benne v Schnecko, 100 Mo. 258; McElroy v. Maxwell, 101 Mo. 308. (2) The property being susceptible to division and being one tract, a portion of one section, all connected, and sued on as one tract, it was the duty of the sheriff to subdivide the land and sell only so much as was necessary to satisfy the judgment and costs. R. S. 1899, secs. 3185 and 9375; Kelly v. Hart, 61 Mo. 463; State ex rel v. Yancy, 61 Mo. 397; Bouldin v. Ewart, 63 Mo. 330; Gordon v. O'Neil, 96 Mo. 350; Roth v. Galbert, 123 Mo. 21; Carrigan v. Smith, 126 Mo. 304; Holdsworth v. Shannon, 113 Mo. 508; Rector v. Hart, 8 Mo. 448; Hicks & Hammond v. Perry, 7 Mo. 346. (3) The allegations are to be taken as true when considered on demurrer. The property was worth $ 800, the taxes and interest $ 9.75, costs $ 15.18, or not to exceed $ 25. The property in a body sold for $ 190, this of itself is evidence that they have sold six or seven times the property required or authorized at law. That the property would sell for as much at private sale as a whole as at private sale for its parcels is not the criterion. Gordon v. O'Neil, 96 Mo. 350; Knoop v. Kelsey, 121 Mo. 642; Donham v. Hoover, 135 Mo. 210; McKee v. Logan, 82 Mo. 354. (4) There is no innocent-purchaser proposition in this case. Holdsworth v. Shannon, supra. (5) The petition was sufficient and stated a good cause of action and the demurrer should have been overruled. Kelly v. Hart, 61 Mo. 463. (6) Appellants were not required to tender to respondent the amount bid at any time in law or equity, but considering for the sake of argument that they were, then we say the petition contains allegations of such tender and it alleges there was a tender which had been refused. We were not required to tender that which he had in advance refused. The rule of caveat emptor applies to judicial sales, the respondent should be reimbursed, and this court as a court of equity will protect him. We do not seek to do him injustice. He shall and should be protected in his outlay in accordance with equity as administered by our courts. A tender without deposit of money stops interest. Landis v. Saxton, 89 Mo. 375. The rule of equity is, "who seeks equity must do equity," and means simply this: "Equity on equitable terms." These terms are imposed as the price of decree. No tender was necessary at any time. Whelan v. Reilly, 61 Mo. 565; Kline v. Vogel, 90 Mo. 237; Diechman v. Diechman, 49 Mo. 167; Johnson v. Galocks, 63 Mo.App. 578; Soap Works v. Sayers, 55 Mo.App. 16; Harwood v. Diemer, 48 Mo.App. 49. (7) A tax sale is a judicial sale, and governed by same law, and the tax law itself directs that the property be sold or so much as may be necessary -- not all of the property. R. S. 1899, secs. 3185 and 9375; Welshear v. Kelly, 69 Mo. 343; State ex rel. v. Sargent, 12 Mo.App. 228.

Kleinschmidt & Reppy for respondent.

(1) The statutory provision that the sheriff shall subdivide real estate offered for sale under execution, is merely directory. Field v. Dortch, 34 Ark. 399; Rector v. Hart, 8 Mo. 448; Sheehan v. Stackhouse, 10 Mo.App. 469; Bouldin v. Ewart, 63 Mo. 330; Lewis v. Whitten, 112 Mo. 318. (2) There being no allegation in the petition that the real estate in question was assessed and sued on as one tract, or that the lands were owned by the plaintiffs as tenants in common or by the entirety, each forty-acre tract was liable for its own taxes and no parcel was liable for the taxes of any other. State ex rel. v. Sargeant, 12 Mo.App. 228; State ex rel. v. Sargeant, 76 Mo. 557. (3) No tender of the amount paid by the respondent for the land in suit, nor the costs of the sheriff's deed therefor, was tendered to him by the appellants before the institution of this suit, nor was the offer made in the petition sufficient, as it did not include costs of the sheriff's deed and costs of this suit. Alley v. Burnett, 134 Mo. 313; Ross v. Mortgage Security Co., 101 Ala. 362; Rogers v. Tindall, 99 Tenn. 356; 21 Encyclopaedia of Pleading and Practice, p. 548. (4) The sheriff is a necessary party defendant, as the petition on its face sought to impound the money in the hands of the sheriff and prayed for a delivery thereof to the defendant as part of the offer of restitution made therein.

OPINION

MARSHALL, J.

This is a bill in equity to set aside a sheriff's deed to the defendant, made under a special fi. fa. issued upon a judgment for taxes, amounting to $ 9.75, and costs $ 15.18, assessed against the south half of the northwest quarter, and southwest quarter, and west half of the southwest quarter of the northeast quarter, of section 28, township 39, range 4 east, in Jefferson county, containing two hundred and sixty acres, being the property of the plaintiffs. The petition alleges that in June, 1897, the plaintiffs were made defendants in a tax suit filed in Jefferson county by the tax collector of that county to recover said taxes assessed against said land; that at the September term, 1897, a judgment was rendered for said taxes and costs and foreclosing the lien of the State upon said land therefor; that on October 7, 1897, a special execution was issued to the sheriff commanding him to sell said land, or so much thereof as was necessary, to satisfy the debt and costs; that the sheriff sold the said land to defendant for one hundred and ninety dollars and made him a deed thereto, under which the defendant now claims the land. The petition then alleges the following:

"Plaintiffs claim that said land is reasonably worth the sum of $ 800, and that at said sale of said land the sheriff wholly violated the law and the commands of the execution in this respect, that he did not offer for sale the said land in its subdivisions, or in any natural or artificial subdivision of the same; and plaintiffs allege that any one of said natural subdivisions would have sold for more than enough to pay said debt and costs, leaving remaining for these plaintiffs the larger part of said 260 acres of land, but that unmindful of his duty to these plaintiffs the said sheriff, at the request of parties interested in the sacrifice of plaintiffs' land, and wholly unmindful of the commands of the execution and his duty to the plaintiffs, never once offered said land in smaller divisions than the whole; whereas the land has three natural subdivisions, one of 20, one of 80, and of one 160 acres, and that the said 80-acre and 160-acre subdivision of the whole could have been conveniently divided into at least six subdivisions of 40 acres each, and so sold, but the said sheriff proceeded to sell the whole, thus attempting in the interest of parties interested in acquiring all of said land, to confiscate the whole of the property of the plaintiffs in an unlawful and illegal way, for about one-quarter of its reasonable value, but for which he realized on said illegal sale the sum of $ 190, or about seven times the taxes and costs, or the amount of said judgment.

"Plaintiffs show that there is now in the hands of the sheriff of said county the sum of $ 146.57, the proceeds in excess of the amount of said judgment, and that these plaintiffs have refused to receive the same, but they here now request that this honorable court, by its order have the same paid into this court to await the final disposition of this suit; that plaintiffs have offered before the institution of this suit to reimburse and pay the said defendant Lepp his money, costs and expenses, if he would reconvey said property to plaintiffs, but he has refused so to do, thus persisting in carrying out the conspiracy to confiscate the whole of plaintiffs' land to pay a small judgment for taxes, and showing his disposition to retain an illegal and unjust advantage of plaintiffs. A plat of said land is hereto attached, marked 'Exhibit A,' showing the position of said land, and the subdivisions of the same, any one of which would have sold, as plaintiffs believe, for sufficient to satisfy and discharge said debt and costs. Plaintiffs here now offer to pay to said defendant Lepp the said amount of money by him bid for said land, or so much thereof as will be necessary in addition to said $ 146.57 to equal the amount of his bid, $ 190.

"Plaintiffs show that they had no knowledge of said sale, nor as to the time or place when the same was to be sold, until some months after the sale. That they never consented to nor requested that said land be sold in a body. That had they known of the contemplated sale of said land they would have directed the sale of said land in tracts or subdivisions as the law directs and contemplates. That plaintiffs employed attorneys to institute these proceedings to have said sale set aside as soon as they became aware of the facts.

"Wherefore, plaintiffs pray that said sale be set aside; that said deed be cancelled, and held for naught, and for such other orders and decrees as to the court may seem equitable and just in the premises."

The defendant demurred to the petition, generally, because it did not state facts sufficient to constitute a cause of action or to entitle the plaintiffs to the equitable relief sought, and specially, because it did not allege that the plaintiffs had tendered to the defendant, before the institution of the suit, the amount of the purchase price paid by the defendant. The circuit court sustained the demurrer, the plaintiffs refused to plead further, a final judgment was...