Cashion v. Faina

• Decision Date: 31 October 1870
• Citation: 47 Mo. 133
• Parties: A. H. CASHION, Plaintiff in Error, v. VINCENT FAINA et al., Defendants in Error.
• Court: Missouri Supreme Court

47 Mo. 133

A. H. CASHION, Plaintiff in Error,

v.VINCENT FAINA et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1870.

Error to Second District Court.

B. Cissell, for plaintiff in error.

There is no warranty of title in sales by the sheriff to make partition. (Owsley et al. v. Smith's Heirs, 14 Mo. 153; Schwartz v. Dryden, 25 Mo. 572; Matlock v. Bigby, 34 Mo. 354; Fulbright v. Cannefox, 30 Mo. 425; Wagn. Stat. 971, §§ 34-5; Stewart v. Garvin, 33 Mo. 103.)

Bush & Robinson, for defendants in error.

I. As between the parties to proceedings in partition there is an implied warranty of title. (Owsley v. Smith's Heirs, 14 Mo. 153; Schwartz v. Dryden, 25 Mo. 572; Pickoff v. Page, 26 Mo. 398; Forder v. Davis, 38 Mo. 107.) The doctrine of caveat emptor does not apply to sales in partition. (Pentz v. Kuester, 41 Mo. 447; Fulbright v. Cannefox, 30 Mo. 425; Jackson v. Edwards, 22 Wend. 509; In the matter of Cavanaugh, 37 Barb. 22; Sugd. Vend. 60, note.)

II. If the rule of caveat emptor does not apply (Pentz v. Kuester, supra) in partition sales, failure of consideration being pleaded is a good defense without regard to warranty. This defense is competent in all cases where this rule does not obtain. (1 Pars. Cont. 427, 462; Sto. Prom. Notes, 183; Broom's Leg. Max. 471; Long v. Gilmore, 28 Mo. 560; Walker's A. L. 421; 2 Blackst. 445.)

WAGNER, Judge, delivered the opinion of the court.

The defendant, at a sheriff's sale in partition, purchased certain lands, and gave his promissory note for a part of the purchase money. Payment not being made at maturity, the sheriff brought this action to enforce the collection thereof. As a defense, the answer stated that there was a failure of consideration; that there was no title to one of the pieces of land purchased at the sale, and that the defendant had been evicted from its possession in an action regularly instituted in a court of competent jurisdiction; that the other piece of land was valueless; and he asked for a cancellation of the note, and for judgment for the amount he had paid.

This answer was stricken out, on motion, as constituting no defense to the action, and the defendant failing to further answer, judgment was rendered for plaintiff, which was reversed in the District Court. The answer contains no averment, nor is it pretended, that there was any fraud, misrepresentation, or undue influence practiced at the sale. The simple question, then, presented arises upon the construction of our statute as to whether a sale in partition imports a warranty of title. This question has been before this court on several occasions, and it has always been decided that there was no warranty in such cases; that the deed executed conveyed the interest, whatever it might be, of the parties to the proceedings, and was a bar against them and all persons claiming under them. (Owsley v. Smith, 14 Mo. 153; Schwartz v. Dryden, 25 Mo. 572; Matlock v. Bigby, 34 Mo. 354.)

Without re-stating the reasons which led to these decisions, it is only necessary to say that the...