City of St. Louis v. Peck, 30107
| Citation | 319 S.W.2d 678 |
| Decision Date | 09 January 1959 |
| Docket Number | No. 30107,30107 |
| Parties | The CITY OF ST. LOUIS, a Municipal Corporation (Plaintiff), Appellant, v. John A. PECK et al., Defendant, and Temple Herron Finley, Movant, to Set Aside Sheriff's Sale of Land Described in Item 1001, Respondent, James Herron et al., Heirs of Elie Bowers, Movants, to Set Aside Sheriff's Sale of Land Described in Item 1002, Respondents, Montgomery Berry et al., Movants, to Set Aside Sheriff's Sale of Land Described in Item 1003, Respondents. |
| Court | Court of Appeal of Missouri (US) |
Charles J. Dolan, Acting City Counselor, Oliver T. Johnson and Andrew J. Reis, Assoc. City Counselors, St. Louis, for appellant.
Dewey S. Godfrey, Jr., St. Louis, for respondent Finley.
Sigoloff & Sigoloff and J. E. Sigoloff, St. Louis, for other respondents.
Schurr & Inman, for Globe-Democrat Pub. Co., amicus curiae.
HOUSER, Commissioner.
This is an appeal by the City of St. Louis from an order of the circuit court of that city sustaining three separate motions filed by three different parties to set aside execution sales of three separate parcels of land for the non-payment of three separate benefit assessments made in the course of the condemnation proceedings in which Twelfth Street was widened.
In 1947 the circuit court entered judgment in the condemnation suit assessing benefits against numerous parcels of land, fixing the assessment against the land described in Item 1001 at $204, in Item 1002 at $67.50 and in Item 1003 at $42. The assessments against these and various other parcels of real estate not having been paid, the court in the year 1957, on motion of the condemnor, ordered executions to issue directing the sheriff to sell the property described in Items 1001-2-3 and in forty-seven other items. Pursuant to that order the sheriff advertised the sale of the fifty items for Friday, April 12, 1957, 'between the hours of nine o'clock in the forenoon and five o'clock in the afternoon.' At nine o'clock on the morning of the sale a deputy sheriff went to the east front door of the Civil Courts Building, read the advertisement of the fifty parcels, and asked for bids. The city made the first bid on all of these items, a single bid in the amount of the assessments, costs, fees and charges. Mr. Ray Dady bid $1 more than the city's bid on Items 1001-2-3, whereupon the deputy 'knocked it down to Mr. Dady.' At that time the deputy also sold Items 1004 and 3876 (not involved here) to one O'Toole, who bid $1 more than the city bid on those two items. Announcement was made concerning the other forty-five items that, no competitive bids having been received, the deputy would come back at twelve o'clock 'to see if we could get more money.' Mr. O. P. Paulus appeared about ten minutes before twelve o'clock at the Civil Courts Building to bid on Items 1001-2-3. He was acting as a representative of Mr. Paul F. Brune, a realtor. Mr. Brune had an earnest money contract, signed by all but one of the heirs of the deceased owner, for the sale of these three lots to Mercantile Trust Company for $8,500. Relative to the bids Mr. Brune had authorized Mr. Paulus to go considerably in excess of the amount of the taxes, costs, etc., against the property. He had instructed Mr. Paulus, after deducting the 'taxes' (apparently from $8,500) 'to go up to that point.' At twelve o'clock the deputy read the forty-five items. The city bid the amount of the judgment, costs, etc., on the forty-five items and the deputy knocked them down to the city, 'no competitive bids having been received.' Item 1983 (not involved here) was bid in by Mr. Paulus, acting for Mr. Brune, in the name of Alice Johnston, for an amount $25 in excess of the amount of the judgment, costs, etc. When the deputy came to Items 1001-2-3 Mr. Paulus was informed that they had been sold at nine o'clock that morning. Mr. Paulus requested the deputy to offer those items for sale and notified him that he was ready and willing to bid on them and to make a better bid, but the deputy did not reoffer those items.
The movants showed the existence of a fifty-year custom and usage in the City of St. Louis with respect to judicial sales of real property at public auction under which judicial sales, advertised to be held between the hours of nine o'clock a. m. and five o'clock p. m., are usually conducted at twelve o'clock noon; that locally the words in an advertisement 'to be held between the hours of nine o'clock in the forenoon and five o'clock in the afternoon' have come to mean 'twelve o'clock' and that this is true in the case of all judicial sales, without distinction between execution, foreclosure, special commissioner or other kinds and types of sales. Exceptions to the custom were noted where the advertisement specifies a particular hour between nine and five, or where the person conducting the sale appears at twelve o'clock and makes an announcement that the sale would be held later in the day and before five o'clock
The city showed the existence of a practice of the sheriff's office, which had persisted for twelve and one-half years, in execution sales, to appear at the designated place at nine o'clock on the morning of the day of sale, read the advertisement publicly and ask for bids in competition with the city's bid of the amount of the judgment, costs, etc. It was conceded, however, that in the twelve and one-half years prior to April 12, 1957 no one had ever appeared at that time of the morning with a competitive bid, and that of the four hundred or five hundred sales thus advertised and in which this practice obtained there had been no sales at the nine o'clock call. In all such cases the deputy would announce that the sale would be held at twelve o'clock and he would tell 'them' (apparently referring to the city's representative) to come back at twelve o'clock. The reason given for the adjournment of the sale to twelve o'clock was that 'there are more bidders at that time,' and that the city was interested in getting competitive bids; that the city wanted the money, not the property. If there was no competitive bid at twelve o'clock, the sale would then be held at two p. m.; if no competitive bid at two o'clock, the sale would be held at five p. m.; if no competitive bid at five o'clock, the sale would be held the next morning at nine o'clock. If there was a competitive bid the property would be sold. The sale to Mr. Ray Dady was the first time that a 'competitive' bid had been received at a nine o'clock call and the deputy, deeming it a 'good bid,' knocked it down to him.
Messrs. Paulus and Brune testified that neither inquired of the sheriff's office prior to the day of the sale as to the time the sale would be conducted. They did not think it was necessary. The deputy sheriff testified that the sheriff's office received twelve to fifteen inquiries as to the time when the sale would be conducted, including a call from Mr. Brune's office, and that all who made inquiries were informed that the sale would commence at nine o'clock a. m. We resolve the conflict in the evidence as to whether the deputy sheriff orally informed the office of Mr. Brune that the sale would commence at nine o'clock against appellant, in deference to the trial court's superior opportunity to assess the weight and value of the testimony of the witnesses who appeared before him.
Testimony was introduced in support of these facts and figures concerning the properties in question:
Amount of Sale Actual Value
Special General Price to Market Alleged
Parcel Assessment Taxes Ray Dady Value in Motion
------ ---------- --------- -------- --------- ---------
1001 $204.00 $1,490.22 $617.92 $3,700.00 $4,000.00
1002 67.50 360.61 410.27 2,800.00 3,000.00
1003 42.00 530.09 355.27 1,500.00 2,500.00
Mr. Brune testified that the market value of the three lots, taken together, was $8,500.
The statute under which these sales were conducted, section 513.235 RSMo 1949, V.A.M.S., provides as follows 'All property taken in execution by any officer shall be exposed to sale on the day for which it is advertised, between the hours of nine in the forenoon and five in the afternoon, publicly, by auction, for ready money, and the highest bidder shall be the purchaser.'
Appellant's first point is that the court erred in finding that the sales were not valid, since they were regular in every respect, and made at the time required by statute, as set out in the advertisement and as announced by the sheriff. Appellant contends that the deputy followed the law in holding the sale at nine o'clock, received competent bids and was bound to recognize the highest bidder as the purchaser; and having accepted the bid of the highest bidder could not resell the properties at the twelve o'clock call. Appellant further contends that the custom of selling at auction at twelve o'clock does not affect the validity of the sale.
A motion to set aside an execution sale is addressed to the sound discretion of the court issuing the process. State ex rel. Marrs v. Wessell, 237 Mo. 593, 141 S.W. 883; 33 C.J.S. Executions Sec. 240. The question in such case is whether the action complained of should be permitted in justice and good conscience to stand. State ex rel. Marrs v. Wessell, supra; City of St. Louis v....
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