Chilton v. Harris

• Decision Date: 04 May 1914
• Parties: EDWARD W. CHILTON, Plaintiff in Error, v. WILLIAM A. HARRIS, Defendant in Error
• Court: Kansas Court of Appeals

166 S.W. 1084

179 Mo.App. 267

EDWARD W. CHILTON, Plaintiff in Error, v. WILLIAM A. HARRIS, Defendant in Error

Court of Appeals of Missouri, Kansas City

May 4, 1914

Error to Cooper Circuit Court.--Hon. G. A. Wurdeman, Special Judge.

AFFIRMED.

Judgment affirmed.

John Cosgrove for plaintiff in error.

W. G. & G. T. Pendleton for defendant in error.

OPINION

ELLISON, P. J.

This is an action on a judgment against defendant W. A. Harris rendered in favor of George E. Harris in the circuit court of Cooper county on the 29th of October, 1903 for $ 1739.29 and for the costs taxed at $ 29.70. George E. Harris assigned the judgment to this plaintiff. The trial court rendered judgment against defendant W. A. Harris and he appealed to this court.

It appears from defendant's answer, sustained by the evidence, that George E. Harris, as plaintiff in the original judgment, assigned it to this plaintiff to secure a lawyer's fee due from him, and that he afterwards died. That long after his death, to-wit, on the 4th of March, 1913 the attorney for this plaintiff the assignee, and of the heirs of George E. Harris the assignor, and of the lawyer to whom the fee was due, ordered execution on the judgment and such writ was issued and delivered to the sheriff who levied it upon lands of the defendant. These lands were regularly sold by the sheriff for the purpose of satisfying the judgment, the attorney who ordered the execution, purchased all but one acre of the land for his clients for the sum of $ 1975 and that acre was purchased by a daughter and one of the heirs of the deceased George E. Harris for $ 150.

The attorney ordering the execution knew that George E. Harris was dead, but seems not to have realized until after the sale that no title to the lands could be conveyed by the sheriff on an execution in favor of and in the name of a dead man when, in the name of his clients (this plaintiff as assignee and the daughter) and at the return term of the execution, he filed a joint motion to recall and quash the execution for the reason that it "was void and conveyed no title" to them. The circuit court, after hearing the motion, sustained it, and ordered the sheriff to refund the $ 150 bid and paid by the daughter and found that the attorney purchasing for his clients had not paid any money, as they owned the judgment. The parties agreed that the execution was void.

Afterwards the present action was instituted on the judgment as stated in the beginning and on the facts shown defendant insists that the amount of the bids at the execution sale should be credited on the judgment and that judgment be rendered against him for the balance only.

Plaintiff's position is that since he got no title at the sheriff's sale on account of the execution being void, he should be allowed to escape his purchase and not credit his bid on the judgment. While defendant insists that as no fraud or unfairness is pretended, and as plaintiff knew all the facts and as his mistake was only one of law, he must abide by his purchase and credit his bid on the judgment.

It is commonly understood by the bar that the rule caveat emptor applies to sheriffs' sales. [Rorer on Judicial Sales, Secs. 174, 476, 528, 603; Kleber Void Jud. & Ex. Sales, Sec. 457; Stewart v. Devries, 81 Md. 525, 32 A. 285; Johnson v. Laybourn, 56 Minn. 332, 57 N.W. 933; Borders v. Hodges, 154 Ill. 498, 39 N.E. 597.] The questions presented under this general rule are interesting but unsettled. Diversity in mode of considering them has led to different conclusions. Some courts have pronounced the purchaser a mere "volunteer" in bidding and paying his money; and consequently holding that he must pay his bid, or if paid, that he cannot recover it back. [Home v. Nugent, 74 Miss. 102, 108.] It has been said that under the rule of caveat emptor, and as a necessary result of it, "the money produced at a sheriff's sale is to be regarded, not as the money of the purchaser, but as that of the defendant in the fi. fa." [Lowe v. Rawlins, 83 Ga. 320, 10 S.E. 204.] Again it is held that if a bidder at a sheriff's sale gets no title and makes it known before the sale is confirmed, he will be released. [Williams v. Glenn, 87 Ky. 87, 89, 7 S.W. 610.] Then we have in this State the well known case of Valle's Heirs v. Fleming's Heirs, 29 Mo. 152, wherein it is held that a purchaser at an administration sale of land encumbered by a mortgage whose bid has been used to pay the mortgage debt will be subrogated to the rights of the mortgagee. And it has been held that the heirs will not be permitted to set aside an administration sale of real estate where the purchase money went to discharge debts of the estate, without refunding the purchase money. [Throckmorton v. Pence, 121 Mo. 50, 57, 25 S.W. 843; Davis v. Gaines, 104 U.S. 386, 26 L.Ed. 757.]

So in McLean v. Martin, 45 Mo. 393, where the sheriff by mistake misdescribed land as belonging to the execution creditor and so sold it to a purchaser who also supposed it was the debtor's; and the debtor, joining in the mistake, supposing his land had been sold surrendered possession to the purchaser who entered and made improvements, it was held, in an opinion by WAGNER, J., that the doctrine of caveat emptor did not apply to such a case.

But these cases have not been allowed to affect the full application of the rule in this State. Thus in Cashion v. Faina, 47 Mo. 133, it was held, the opinion also by Judge WAGNER, that at a partition sale by the sheriff there was no warranty and a purchaser must pay a note for his bid though he got no title. And in Schwartz v. Dryden, 25 Mo. 572 (the opinion being by the Judge who wrote Valles Heirs v. Flemings Heirs, supra) it was held that there could be no abatement of the price though there was no title to a part of the land sold. The same was held in Stephens v. Ells, 65 Mo. 456 and Shannon v. Mastin, 135 Mo.App. 50, 114 S.W. 1127.

In Talley v. Schlatitz, 180 Mo. 231, 239, 79 S.W. 162, it is said that in a sale by the sheriff the owner of the land intends nothing, and that the law through its officer, the sheriff, "acts in hostility to him," and that "the rule of caveat emptor applies to all execution sales." The same is decided in Clarke v. Cooper, 148 Mo.App. 230, 128 S.W. 47 and McNamee v. Cole, 134 Mo.App. 266, 274, 114 S.W. 46.

Manifestly these cases announce a rule that a purchaser at execution sale in this State is in the position of him who receives a quit claim deed; he gets what he may and must pay the price. And this is the prevailing rule. [Peterborough Bank v. Pierce, 54 Neb. 712, 719, 75 N.W. 20; McCartney v. King, 25 Ala. 681; Goodbar v. Daniel, 88 Ala. 583, 7 So. 254; Lewark v. Carter, 117 Ind. 206, 20 N.E. 119; Lewdars v. Thomas, 35 Fla. 518; Smith v. Painter, 5 Serg. & Rawle 223.] In the last of these cases it was said: "The sale by sheriff excludes all warranty; the purchaser takes all risks; he buys on his own knowledge and judgment; caveat emptor applies, in all its force, to him. If this were not the law, an execution, which is the end of the law, would only be the commencement of a new controversy; the creditor kept at bay during a series of suits, before he could reap the fruits of his judgment and execution. A party may sell his claim to lands, whatever they may be; and if there is no covenant other than an express stipulation that he sells only his own interest, unless he has been guilty of some misrepresentation as to the intent or some fraudulent concealment, he may recover the purchase money. Lands, at sheriff's sale, are frequently sold greatly below their value, because the usual understanding is, that the purchaser takes his chance of the title."

The foregoing rule presupposes that no fraud is practiced; and in some jurisdictions mistake of fact, especially if it be mutual, will relieve the purchaser. But if that rule be conceded to exist in this State, it would not apply to this case, since here the fact which made the execution void (the death of the plaintiff) was known to the purchaser; the mistake he made in supposing the execution to be valid, was one of law, and a mistake of law by a purchaser at an execution sale will not relieve him. [Burns v. Hamilton, 33 Ala. 210; Arnold v Donaldson, 46 Ohio St. 73, 81, 18 N.E. 540.] "Even courts of equity will not relieve in an independent action, from a mistake of law where it is not accompanied with special circumstances--such as misrepresentation, undue influence, or misplaced confidence. And courts of law are less indulgent than courts of equity in such case. 'It is well settled,' says Greenleaf, after speaking of the recovery of money paid under mistake of facts, 'that money paid under a mistake or ignorance of law of our own country but with a knowledge of the facts, or the means of such knowledge, cannot be recovered back.'" [Boggs v. Hargrave, 16 Cal. 559, 565.] This is illustrated in this State. Thus in Needles v. Burk, 81 Mo. 569, it was held that a father paying damages caused by his infant son setting out a fire under a mistaken belief that he was legally liable, in the absence of fraud, could not recover the money back. In Couch v. Kansas City, 127 Mo. 436, 30 S.W. 117, the plaintiff paid taxes on property in extended city limits, under the mistake that the extension was valid and it was held he could not recover them back. See also Campbell v. Clark, 44 Mo.App. 249, where the...