Clarke v. Cooper

• Decision Date: 19 April 1910
• Citation: 128 S.W. 47,148 Mo. App. 230
• Parties: CLARKE, Sheriff, v. COOPER.
• Court: Missouri Court of Appeals

128 S.W. 47

148 Mo. App. 230

CLARKE, Sheriff, v. COOPER.

St. Louis Court of Appeals. Missouri.

April 19, 1910.

1. EXECUTION (§ 271)—SALES—TITLE OF PURCHASER.

In absence of fraud, surprise, or misunderstanding, the purchaser at an execution sale takes the title sold at his peril.

2. NOTICE (§ 12)—CONSTRUCTIVE NOTICE.

One cannot shut his eyes to facts which he knows, or should know, and hold one who has innocently been mistaken responsible for resulting injury.

3. EXECUTION (§ 248)—SALE—NOTICE OF SALE —DESCRIPTION OF PROPERTY.

The advertisement of a lot sold at execution sale stated that it was a corner lot on G. street, and the deed tendered the purchaser conformed to the levy and advertisement, but the lot was not in fact a corner lot. There was a point on a certain survey of the subdivision which was designated G. street, and it could have easily been determined by slight investigation whether the street was opened or dedicated, and the lot could have been located. The purchaser lived within five or six blocks of the lot, and was familiar with the neighborhood, and had passed the lot sold, but claimed that he relied upon the statement in the advertisement that it was a corner lot, and was misled thereby into bidding a higher price than it was worth as a noncorner lot. Held, that the purchaser could not rely on the misstatement in the advertisement and deed that the lot was a corner lot to avoid the sale or justify his refusal to accept the lot.

4. JUDICIAL SALES (§ 35)—SALE—VALIDITY— MISTAKE AS TO VALUE.

A failure or mistake in value of the thing purchased at a judicial sale is not ground for setting it aside.

Appeal from St. Louis Circuit Court; Eugene McQuillon, Judge.

Action by Patrick H. Clarke, Sheriff, against George N. Cooper. From a judgment for plaintiff, defendant appeals. Affirmed.

Albert C. Davis, for appellant. Zachritz & Bass, for respondent.

REYNOLDS, P. J.

The respondent in this case, at the time sheriff of the city of St. Louis, having in hand a pluries writ of execution, issued out of the circuit court of the city of St. Louis, levied upon the right, title, claim, interest, estate, and property of one Green, defendant in the execution, describing the property as follows: "A lot of land situated in the city of St. Louis, in the state of Missouri, and in block 2924 of said city, having a front of sixty (60') feet and six (6") inches on the west line of Minnesota avenue by a depth westwardly between parallel lines of 147 feet 11 inches; bounded north by Grundy street, south by land now or formerly owned by Mary O. Cummisky and trustee, east by Minnesota avenue and west by a line parallel to Minnesota avenue." This is in that part of the city formerly called "Eiler's Subdivision of Carondelet." Legal notice of the sale being published, one Cooper, appellant here, bid off the property for the sum of $300. The sheriff executed a deed to Cooper for the property, described it as in the advertisement and levy as above, and tendered it to the appellant, who refused to receive the deed or to pay the amount bid for the property. Whereupon the sheriff readvertised the property under the same description, as we understand, as in the first advertisement, and sold it to one Hereford, at the price and sum of $35. Subsequently the sheriff, proceeding under the provisions of section 3202, Rev. St. 1899 (Ann. St. 1906, p. 1819), moved the court for a judgment against Cooper for the difference between the amount of the bid, to wit, $300, which had been made by Cooper, and the amount bid by Hereford, to wit, $35, making a loss of $265, also demanding the cost of advertising the second sale, which amounted to $56. Cooper answered, admitting that he had made the bid of $300, admitting that the lot was struck off to him, and that the sheriff had tendered him a deed conforming to the levy and advertisement, but averring that the description contained in the advertisement made the lot a corner lot, and that according to that advertisement it was situated on the southwest corner of Minnesota avenue and Grundy street, and that it was announced at the sale by the deputy sheriff, who cried it, that the lot was on the southwest corner of Minnesota avenue and Grundy street, and that he (Cooper) bid upon the property believing that fact to be true, whereas in truth and in fact, as he claims in his answer, it was not a corner lot, was not bounded on the north by Grundy street, that there is no Grundy street, or any other street bounding the lot on its northern line, and that if the lot had been a corner lot, it would have been of a much greater value than is the lot in its actual location.

At the proceeding under the motion, the present sheriff, Mr. Nolte, was substituted in place of Mr. Clarke, but the title of the case has not been changed in this court, as it should have been. Appellant, in support of his claim, introduced as a witness a Mr. Ryan, who testified that he was a title examiner in the city of St. Louis. Mr. Ryan was asked if he had heard the description of the property read as it is described in the petition in the case, and he said he had. He was asked if he had examined the title to that property, and he answered that he had. Asked if he had made a special examination as to this piece of property with reference to whether there is any Grundy street on the north of it, he testified that he had examined through the ordinary channels of a title examiner, and that there is represented on the plats in the special tax department a street called Grundy street but that the property covered by this street is assessed in the names of individuals; that he found no formal dedication or opening of Grundy street of record. Asked if there was anything upon the record to show that there ever was contemplated to lay out a Grundy street there, he answered: "There was something on the records to show there was evidently at one time contemplated Grundy street," but according to the surveys laid out by Eiler, who laid off the subdivision in which the lot is situated, the street is represented as being closed, owing to the fact that the block "didn't have sufficient width"; found nothing on the record to show that it had ever been opened. On cross-examination he stated that he could not say from an examination in the special tax department of the plats there on file that they show a street; that Grundy street is represented on these plats as 36 feet wide, not represented exactly as a street, but there is written on the plat at that place, "Grundy street, 36 feet," but there are no dotted lines, and so far as his examination went, he found no dedication of it but that the records do show that some time back it had been contemplated putting a street through there to be called Grundy street; that there was a survey of the town of Carondelet by Eiler, in 1832, wherein it states that "`G' street is entirely shut up, owing to the circumstance that there was not sufficient ground for the blocks, for these streets to maintain their proper width," 38 feet, English measure. This was all the evidence introduced by the appellant in chief, who under the ruling of the court, had the affirmative, and was given the opening and closing of the case.

Respondent then called the deputy sheriff who had made the sale. He testified to the fact of making the sale, and that Mr. Cooper was the bidder for $300, and the deed was tendered him properly executed, and Mr. Cooper refused to pay the $300; that the property was readvertised, and at the second sale sold for $35 to Mr. Hereford, who was the highest bidder, and that the additional costs were $56. The execution was offered; it being admitted that the sheriff had acted under a good and valid execution, as pleaded. Respondent here rested, and appellant in rebuttal was examined as a witness on his own behalf, and testified that he is a real estate agent; had been in that business for about eight years; had bid $300 on this property; had read the advertisement, and that had stated it was a corner lot, and he supposed it to be such. If it had been a corner lot, it was worth $20 a foot; but as an inside lot he would not consider it worth more than $8 a foot. On cross-examination he stated that he had read the description in the advertisement before he made the bid; read it the same day; called at the sheriff's office on the morning of the day of the sale at about 9 o'clock; made some inquiries about the lot, and then came back at noontime and bid the lot in at the sale. Asked if he had never visited the premises, or never sent down to inquire or to see whether or not it was a corner lot, he answered that he was familiar with the property down there himself, living in that neighborhood, and within five or six blocks of this property, and knew the property from having passed it occasionally, and knew just where it was, and what it was; knew that before he made the bid. He said, however: "But from the `ad' I judged it would be a corner lot; if it was bounded by two streets, it would naturally be a corner lot." Asked by the court if he was familiar with the neighborhood, appellant said he was; did not know whether or not Grundy street existed; it might be a street and not be traveled, might be a street of record. The court then said to him: "But as you were familiar with this neighborhood and the property in the...