Boxwell v. Boxwell, 25099

• Decision Date: 02 June 1969
• Docket Number: No. 25099,25099
• Citation: 444 S.W.2d 510
• Parties: Hubert E. BOXWELL, Appellant, v. Elvada BOXWELL, Respondent.
• Court: Missouri Court of Appeals

Page 510

444 S.W.2d 510

Hubert E. BOXWELL, Appellant, v. Elvada BOXWELL, Respondent.

No. 25099.

Kansas City Court of Appeals, Missouri.

June 2, 1969.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 6, 1969.

Hollis Hartley, Lee's Summit, for appellant.

Lee E. Cisel, Kansas City, for respondent.

JAMES W. BROADDUS, Special Commissioner.

The parties hereto are Hubert Elmar Boxwell, appellant-plaintiff below, and Elvada Boxwell, respondent-defendant below, who were once husband and wife and, as such, jointly owned as tenants by the entirety, two parcels of real property, one a residence and the other a business property. Both properties are situated in the City of Lee's Summit, Missouri.

This action arose out of a judicial sale of the business property under a judgment of partition. The residential property is not involved in this appeal. It was sold in partition on the same day and at the same time and place and by the same Special Commissioner under another partition judgment.

No property settlement having been made at the time of the divorce, the appellant here, as plaintiff below, commenced this action in partition on April 1, 1966. Respondent, defendant below, thereafter filed an amended answer to appellant's petition and also a cross claim for partition. On November 17, 1967, judgment in partition was rendered on appellant's original petition. The court appointed a special commissioner to sell the property involved.

On March 21, 1968, the special commissioner sold both the business property and the residential property at public sale under directions in separate partition judgments. The business property was sold to appellant, who was the only bidder for $5,000. The building had been appraised at $12,500. After the special commissioner filed his report of the sale to appellant, respondent filed her objections to the confirmation of the sale claiming that the price was unconscionably low amounting to a sale at 'ruinous sacrifice' and that the appellant 'chilled' the sale and prevented competitive bidders from attending the sale.

Thereafter, on June 3, 1968, the court sustained the objections of respondent to the confirmation and approval of the Special Commissioner's sale, and ordered a resale of the property. Plaintiff appealed.

At the hearing of the objections to the confirmation of the Special Commissioner's sale the respondent's first witness was Harry Ellsworth who testified that his business was investments, real estate and building, and that he traded, bought and sold real estate. He testified that he knew of the sale of the business property scheduled for March 21, 1968; that he wanted to know about the building and telephoned Mr. Boxwell, the appellant, and discussed the size of the building, its condition, occupancy and the possibility of Mr. Boxwell becoming a tenant if Ellsworth purchased the building at the coming sale. Mr. Ellsworth said he told Mr. Boxwell that he thought the building might be worth $10,000, maybe eleven or twelve' and that Mr. Boxwell told him he, Boxwell, was prepared to bid up to $12,500 for the building, if not more. Mr. Ellsworth testified that he did not attend the sale because he gained from conversation with Boxwell that Boxwell was going to bid higher than he, Ellsworth, was willing to bid. Mr. Ellsworth further testified that if the property was resold he would likely be a bidder. He testified that he did not go look at the property because he was discouraged.

Elvada Boxwell, respondent, testified that she attended two partition sales on March 21, 1968, being the sale of the business property and the residential property; that the sale of the business property was held first and that Mr. Boxwell, appellant, bid $5,000 for the business property, which was the only bid made. Mrs. Boxwell testified that she expected three bidders to attend the sale to bid for the business property, including Mr. Ellsworth, but none attended. Mrs. Boxwell further testified that she borrowed from the Farmers Trust Company the sum of $3,500 so she could bid on her house (the residential property) with the understanding with the bank that she would use this $3,500 for no other purpose. She testified that she did have the $3,500 with her at the sale of the business property, but did not use it to bid on the business property in order to keep faith with the bank that furnished her the money. She testified that she made no effort to borrow money to bid on the business property because she thought it would go high enough because there would be enough bidders present. She testified that the business building had been appraised at twelve thousand five hundred dollars by Mr. Cecil Shopen. She also testified that if the business property was resold she was prepared to borrow money and would open the bidding with a $10,000 bid.

After asserting under 'I' of his 'Points and Authorities' that: 'Inadequacy of Consideration in and of itself will not justify setting aside a judicial sale', appellant contends that: 'II The ruling of the court below was a clear abuse of the court's discretion.'

It should be kept in mind that the issue here must be confined to a judicial sale as distinguished from a non-judicial sale, and must be further limited to a judicial sale which had not yet been approved or confirmed by the court having control of a sale made by an officer of the court.

Eight cases are cited by appellant under 'I' of his Points and Authorities. Seven of these cited cases involve non-judicial tax sales made by...