Clamorgan v. O'Fallon

• Decision Date: 31 March 1846
• Citation: 10 Mo. 112
• Court: Missouri Supreme Court
• Parties: CLAMORGAN v. O'FALLON & LINDELL.

10 Mo. 112

CLAMORGAN

v.O'FALLON & LINDELL.

Supreme Court of Missouri.

March Term, 1846.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

CROCKETT & BRIGGS, for Appellant. 1st. That in a sale by sheriff under execution, if property of defendant be levied upon and sold without the direction or interference of plaintiff, and the plaintiff's demand is satisfied by the sale, upon a motion afterwards by defendant to set aside the sheriff's sale for irregularity, it is not necessary to notify the plaintiff in execution of the-motion. 4 Littell, 244; 4 Monroe, 465, 474. 2nd. That upon a motion to set aside a sheriff's sale, if the purchaser, subsequent to his purchase, has sold a portion of the land to other persons, those persons need not be notified of the motion. 3rd. That the purchaser of real estate at sheriff's sale, yet remaining in possession of a portion of the land claiming title under his purchase, cannot object that his vendees of a portion of the land have not been notified of a motion to set aside the sale. January v. Bradford, 4 Bibb, 566. 4th. That the motion to set aside the sheriff's sale is not barred by lapse of time, the sale having been made in 1826, and the motion to set it aside in 1845; that such motion may be made at any time within twenty years, and espeeially where the plaintiffs in the motion were under disability, as in the present case. 2 Mo. R. 228; 7 J. J. Marshall, 624; 7 Johns. 556; 4 Wend. 217; 13 Johns. 537; 8 Mo. R. 448. 5th. That the execution under which the land was sold having been against the executors of Jacques Clamorgan, the plaintiffs in this motion, claiming under a devise from J. Clamorgan, are pro hac vice, his representatives, and are therefore not strangers to the record, in such a sense as to defeat the motion. 7 Wend. 83, 6th. That the sheriff's sale was void, and vested no title in the purchaser. Rev. Code of 1825, 367; 8 Mo. R. 448, 177: 7 Mo. R. 346; 19 Pick. 539; 6 Mon. 30; 3 Marsh. 619; 2 J. J. Marsh. 36, 68; 3 Mon. 338; 7 J. J. Marsh. 624; 1 Dana, 185; 3 Dana, 235; 5 Dana, 277; 4 Cranch, 403; 18 Johns. 362; 6 Wend. 522; 9 Porter, 679; 3 B. Mon. 363.

GEYER, GAMBLE & SPALDING, for Appellees. The only point which can now be considered by the Supreme Court, as the decision below was not upon the merits, is, whether the Circuit Court decided rightly in dismissing the motion, because the parties interested were not notified. If a decision of the motion is of any use, it must be because it will affect the plaintiff in the execution, or the present owners of the land under the sale, or both. Neither were notified of the motion. The appellees contend: That notice was necessary in this case to all the parties interested in the result of the motion, and should have been given to the plaintiff in the execution, or his representatives, and the present holders under O'Fallon & Lindell. 1 J. J. Marsh. 12; Hardin, 181; 1 Marsh. 423; 8 Mo. R. 267; 1 Wend. 101; 9 Mo. R. 362, Caldwell v. Lockridge; 1 Bibb, 155; 4 Wend. 217; 2 Bay, 338, show that it is too late now to go into such a question. In one case in Bibb, court would not set aside an execution after nine years, and in the case of Bay, after twelve years.

NAPTON, J.

On the 20th April, 1820, Rufus Easton recovered a judgment in the Circuit Court against Jacques Clamorgan's Executors, for $131 debt, and $28 82-100ths damages besides costs. On the 10th June, of the same year, he issued execution on said judgment, on which the sheriff returned that he had made by the sale of a tract of land, all the costs and interest, and one hundred and forty-three dollars two and three-fourth cents of the debt and damages. On the back of the advertisement appended to the sheriff's return, the sheriff indorsed that Peter Faysaux had purchased the land at the price of $169. No other execution issued until the 3rd April, 1826, when an alias fi. fa. was issued, on which the clerk indorsed the credit of $143 02 3/4 made on the former execution, leaving a balance due of debt and damages $16 79 1/4. On this execution the sheriff returned, that he had levied upon the real estate described in the advertisement, a copy of which was returned with the execution; that having duly advertised the same, he sold it at public auction to John O'Fallon and Jesse G. Lindell, the highest bidders therefor, at the price of $33, which after deducting costs, satisfied the execution and left a surplus of $5 42, in the hands of the sheriff. The property levied upon is not described in the return, otherwise then by a reference to the advertisement, in which the real estate is described as follows, to-wit: “A piece or parcel of land containing one arpent in front by forty arpents in depth, and bounded on the eastern end by a fence formerly made to defend the crops of the inhabitants of St. Louis against the animals or beasts; on the north by the land of Tayon; on the western end by the King's domain, or vacant land; and on the south by the highway which leads to the village of St. Charles; it being the same lot of forty arpents acquired by said Clamorgan of Gabriel Dodier, by deed bearing date November 4, 1793, the boundaries as above set forth are the same as given in said deed.” On the 10th August, 1826, the sheriff conveyed the said land, by the same description as contained in the advertisement, to the purchasers, O'Fallon and Lindell. On the 7th June, 1845, Louis Clomorgan, Henry Clamorgan, and Cyprian Clamorgan (the latter acting by his guardian), claiming to be the heirs and legal representatives of Jacques Clamorgan, deceased, filed their motion to set aside the sale to O'Fallon and Lindell for the following reasons: 1st. Because the alias fieri facias, by virtue of which the sale was made, was irregular and void, and had been improvidently issued, the whole amount of the debt, damages, interest and costs having been collected on the first execution. 2nd. Because the said alias fieri facias was not in fact levied on the land prior to the sale. 3rd. Because the said premises, for many years prior thereto, and at the time of said sale, were divided and laid out into blocks, squares and town lots, visibly divided by streets and alleys, and other marked boundaries, then plainly visible and well known, as well to the sheriff as to O'Fallon and Lindell; that the property was susceptible of a division, and a good part thereof had before then been added to the city of St. Louis, as an addition thereto, by one Jeremiah Conner,...