Burden v. Taylor

• Decision Date: 09 July 1894
• Parties: Burden et al. v. Taylor, Appellant
• Court: Missouri Supreme Court

27 S.W. 349

124 Mo. 12

Burden et al. v. Taylor, Appellant

Supreme Court of Missouri, First Division

July 9, 1894

Appeal from DeKalb Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Affirmed.

Casteel & Haynes and Brown & Imel for appellant.

(1) The partition sale ordered by the Atchison circuit court was "for cash in hand." It was the duty of the sheriff of DeKalb county to collect the purchase price at the time of the sale, and if it was not paid, to resell the land. G. S 1865, 614, sec. 31; Id., 645, secs. 45, 46; Hewitt v Lally, 51 Mo. 93; Goode v. Crow, 51 Mo. 212. And instantly, upon the payment of the purchase price, the purchaser became entitled to a deed which should be a bar against all persons interested in the premises who had been parties to the proceedings, and against all other persons claiming from such parties or either of them. Davis v Green, 102 Mo. 170, 179; G. S. 1865, 614, sec. 34. The approval of the sheriff's report by the court was not required by statute, and constituted no part of defendant's title. The final judgment of the court in case of sale of lands in partition was the order of distribution (G. S. 1865, p. 615, sec. 39) just as the confirmation of the commissioner's report and judgment thereon was made the "final judgment" in case of a partition in kind. (Id., 613, sec. 25), and the record of the sheriff's deed was intended to have the same effect as evidence and notice of title, as the record of the commissioner's report under section 26 (G. S. 1865, 613). R. S. 1855, secs. 23, 24, 26, 27, 39, 40; G. S. 1865, secs. 22, 23, 24, 25, 26, 28, 30; Durham v. Darby, 34 Mo. 447; Hinds v. Stevens, 45 Mo. 209; Murray v. Yates, 73 Mo. 13. See, also, Akers v. Hobbs, 105 Mo. 127. (2) Defendant having purchased at the sheriff's sale in DeKalb county, paid his money and received his deed regularly acknowledged in open court by the sheriff, and having gone into actual possession of the land, could not be affected by the proceedings begun in the Atchison circuit court at the second term afterwards, of which he had no notice. George v. Meddough, 62 Mo. 549; Dunbar v. Weightman, 51 Mo. 432; Ray Co. v. Barr, 57 Mo. 290; Clarmorgan v. O'Fallen, 10 Mo. 112; McKee v. Logan, 82 Mo. 528; Lyster v. Browne, 13 Iowa 461; Delaplaine v. Hitchcock, 6 Hill, 14; Dauw v. Bart, 1 Wend. 89; Elim v. Green, 1 Blackford, 53; Toler v. Ayers, 1 Texas, 398; Bank v. Marsh, 2 Eng. 390; Clark v. Grayson, 2 Ark. 149; Wright v. Leclair, 3 Iowa, 240. (3) The purchaser at this sale stands in the same position as if the parties to the partition had voluntarily conveyed to him. Pentz v. Kenster, 41 Mo. 447.

John E. Burden for respondents.

(1) A sale in partition is technically a judicial sale by the court, made under order of the court, and subject to its approval. And there is no sale until the report is approved by the court, and the purchaser's bid accepted by the court. The approval of such sales is within the discretion of the court. Pomeroy v. Allen, 60 Mo. 530; Nieman v. Early, 28 Mo. 475; Freeman on Executions [1 Ed.], sec. 311; Freeman on Partition [1 Ed.], secs. 544, 545, 548; Buller v. Linzee, 100 Mo. 95; Patten v. Hanna, 46 Mo. 314; Goode v. Crow, 51 Mo. 212; Mitchell v. Jones, 50 Mo. 438; R. S. 1879, section 3380; 76 Am. Dec. 297, and notes; 17 Am. and Eng. Encyclopedia of Law, 794, 795; 51 Pa. St. 58. (2) Until confirmation by the court, such sales are within the statute of fraud. Hutton v. Williams, 76 Am. Dec. 297. (3) There is a wide difference between execution sales, and sales in partition. Patten v. Hanna, 46 Mo. 314; Freeman on Executions [1 Ed.], sec. 311; Rorer on Judicial Sales, sections 590 to 599. (4) The purchaser at a sale in partition is not entitled to notice of a motion to set aside the sale. He is a mere volunteer, and by his bid submits himself to the jurisdiction of the court, and must take notice of all subsequent proceedings in the case, and follow up his bid to see that it is accepted. Executors v. Cortlandt, 2 Johnson Ch., 505; Nieman v. Early, 28 Mo. 475; Pomeroy v. Allen, 60 Mo. 530; Freeman on Cotenancy and Partition [1 Ed.], sec. 545; Rorer on Judicial Sales, sec. 545; 1 Neb. 320; 14 Ves. 512. (5) The judgment and proceedings in the partition suit in the Atchison circuit court are not subject to collateral attack in the ejectment suit in the DeKalb circuit court. Allen v. Gault, 67 Am. Dec. 486; Hutton v. Williams, 76 Am. Dec. 306; Freeman v. Thompson, 53 Mo. 183; Williams, v. Harrington, 53 Am. Dec. 424; Murphy v. Williamson, 5 Central Law Jour. 116; Brawley v. Ranney, 67 Mo. 280; Latrielle v. Dorleque, 35 Mo. 233; Akers v. Hobbs, 105 Mo. 127; Parkinson v. Caplinger, 65 Mo. 292. (6) Until the sale is approved there is only an inchoate right of property raised in the purchaser, and if not approved the sale is void. Loring v. Groomer, 110 Mo. 642. Freeman, Dillon, Lawson, Void Judicial Sales, sec. 41. McBain v. McBain, 15 Ohio St. 337; Curtis v. Norton, 1 Ohio 137; Williamson v. Berry, 8 How. (U.S.) 546; Dickerson v. Talbot, 14 Ben. Monr. 60; 1 R. S. 1879, sec. 3380. (7) The sheriff of DeKalb county can not oust the jurisdiction and discretion of the circuit court of Atchison county to pass upon the report of the sale, by executing to the bidder a deed, prior to making his report. No deed can be executed until the sale is approved. Pomeroy v. Allen, 60 Mo. 530; Goode v. Crow, 51 Mo. 212; Nieman v. Early, 28 Mo. 475. (8) The sheriff is not required to report the sale at any particular term of court. Patton v. Hanna, 46 Mo. 314.

Brace, J. Barclay, J., concurs in the result.

OPINION

Brace, J.

This is an action in ejectment to recover eighty acres of land in DeKalb county, brought by John E. Burden, who claims the land in controversy as trustee for the other plaintiffs, who are the heirs at law and devisees of Benjamin F. Graves, deceased. The plaintiff, Burden, had judgment below and the defendant appeals.

Benjamin F. Graves died in 1873, seized in fee simple of the premises. On the twenty-ninth of July, 1878, a suit was instituted in the circuit court of Atchison county by some of said heirs and devisees against the others, for partition of the real estate of said deceased, including the land in controversy, the title to which became vested in them at his death, in which suit judgment for partition in due form of law was rendered and order of sale of said lands made and entered of record at the September term, 1879, of said court. By virtue of this judgment, the sheriff of DeKalb county, on the seventh day of April, 1880, sold the land in controversy to one James Ewart, for the sum of $ 60, and thereafter on the twelfth day of April, 1880, said sheriff executed, acknowledged and delivered to said Ewart a deed for said lands.

Afterwards, to wit, on the twenty-seventh day of September, 1880, that being the first day of the regular September term of said court, and the second term thereof after said sale was made, the said sheriff filed in said court his report of the sale of said land to said Ewart, and on the same day the parties to said partition suit filed in said court their motion to set aside said sale on the ground of gross inadequacy of price, which motion was by said court, on the twelfth day of said term, sustained, and the sale set aside and annulled, and it was ordered by the court that the sheriff of DeKalb county sell said real estate at some term of the circuit court of said county, in accordance with the decree of partition, aforesaid, and that he report his proceedings, etc. In pursuance of this order, the said sheriff afterwards, to wit, on the fifth day of April, 1881, sold said land to the plaintiff, John E. Burden, for the sum of $ 45, and made report thereof to said court at its September term, 1881, which report was duly approved by said court and said sheriff directed, by order, entered of record, to execute a deed to said land to the said Burden. In pursuance of which order, the the said sheriff, on the nineteenth day of October, 1883, duly executed, acknowledged and delivered a deed, conveying the premises to the said Burden, which deed he took, under an oral agreement to hold for the use and benefit of the parties to said partition suit, and under which he now claims title to the premises.

The defendant claims title under a quitclaim deed from said Ewart to Albert E. Putnam, dated August 19, 1880, and through mesne conveyances from him; also under a tax deed from the collector of DeKalb county to the said Ewart, of date November , 1870.

I. The circuit court of Atchison county had jurisdiction of the proceedings in partition by reason of the fact that the greater part of the lands of which said Benjamin F. Graves died siezed were situate in that county and none of the parties entitled thereto resided in the counties in which such lands were situated. The proceedings were regular to judgment of partition and order of sale under the statute. R S. 1879, chap. 56; G. S. 1865, chap. 152. Under the statute, as it read in the revision prior to that of 1865, it was held that where the judgment of the court is for a partition of the property and directs the land to be sold by the sheriff, the judgment is final, and an appeal therefrom must be taken at the same term at which the judgment is entered. Durham v. Darby, 34 Mo. 447; Hinds v. Stevens, 45 Mo. 209. In the latter case a change in the law is noticed which was carried into the revision of 1865, and since then it has been uniformly held that a report by the sheriff of his proceedings under the order of sale and the approval by the court of that report is required, and that, until such approval, the case is still pending. Pomeroy v. Allen, 60 Mo. 530; Parkinson v. Caplinger, 65 Mo. 290; Murray v. Yates, 73 Mo. 13; ...