Cole County v. Madden

• Decision Date: 16 May 1887
• Citation: 4 S.W. 397,91 Mo. 585
• Parties: Cole County et al. v. Madden et al., Appellants
• Court: Missouri Supreme Court

4 S.W. 397

91 Mo. 585

Cole County et al. v. Madden et al., Appellants

Supreme Court of Missouri

May 16, 1887

Appeal from Cole Circuit Court. -- Hon. E. L. Edwards, Judge.

Affirmed.

McIntyre & Wagner for appellants.

(1) The testimony of the witnesses shows that the lot in question was worth a thousand dollars, but it fails to show any fraudulent act or purpose, or any collusion or irregularity of any kind whatever, nor is any charged in the bill. The case is entirely free from any such infirmity. Hence the court erred in setting aside the sale. The sale was open and fair, and nothing done by the sheriff or purchaser to prevent the property from selling for a higher price. Public policy would indicate that such sales, although attended with great pecuniary loss, ought to be upheld and sustained. Hammond v. Scott, 12 Mo. 8; Nelson v. Brown, 23 Mo. 13; Meir v. Zelle, 31 Mo. 331; Railroad v Brown, 43 Mo. 294; Beedle v. Mead, 81 Mo. 297 307; Holden v Vaughan, 64 Mo. 588; Rorer on Jud Sales, sec. 854; Becknith v. Mining Co., 87 N.C. 155; Bradley v. Luce, 99 Ill. 234, 249; Parker v. Railroad, 44 Mo. 415, 421. (2) [a] The respondents come into a court of equity to ask relief, as we understand, upon the grounds of accident and mistake; this must be so, as no fraud was alleged and no irregularity shown. But equity does not grant relief to a party on the grounds of accident or mistake, if the accident or mistake has arisen from his own gross negligence, or want of reasonable care and attention, and especially if relief to him will harm another. Upham v. Hamill, 11 R. I. 565; Story's Eq. Jur. [11 Ed.] secs. 105, 146; Penny v. Martin, 4 Johns. Ch. 566; Woods v. Patterson, 4 Md. Ch. 335; Taylor v. Fleet, 4 Barb. [S. C.] 95; Copehart v. Mhoon, 5 Jones' Eq. 178; Kesler v. Zimmerschitte, 1 Tex. 50. (b) By the term accident is to be understood, not merely inevitable casualty, or the act of Providence, or what is technically called vis major, or irresistible force; but such unforeseen events, misfortunes, losses, acts, or omissions as are not the result of any negligence or misconduct in the party. Story's Eq. Jur., sec. 78. (c) The fact (about which the mistake occurs) must be material to the act -- that is, must be essential to its character, and the efficient cause of the concoction, and, also, it must be such as, by the use of reasonable diligence, the party could not get knowledge of, when put upon inquiry; and if the mistake is on one side only, there must be fraudulent concealment. (d) Equity administers relief to the diligent, and puts all parties upon searching diligence. Story's Eq. Jur. [11 Ed.] secs. 141, 146, 147, 148; Kerr on Fraud and Mistake, 406, 407; Brown v. Fagan, 71 Mo. 563, 568. (3) The court erred in finding that the county court had an agent at said sale, within the meaning of the statute. Revised Statutes, section 7115, provides that the county court, at such sale, "may, in its discretion, * * * become, through its agent thereto duly authorized, a bidder on behalf of its county." H. A. Swift, one of the judges of the county court, testified that the county court, in session, spoke to the prosecuting attorney to attend the sale and make the property bring the amount of the school debt, that there was no record made appointing such agent. The acts of the county court can only be known by its records, and what it does must be made matter of record (R. S., sec. 1023), and by such record shown. Dennison v. County Court, 33 Mo. 168. They are "the only utterances of the court entitled to recognition." Maupin v. Franklin County, 67 Mo. 327, 330. This was such negligence on the part of the court as will not allow of equitable relief. But if we are in error in this position, and the court find that the agent was duly thereto authorized, then we contend that the agent was guilty, in law, of negligence and inattention. The evidence of the witnesses Silver, Swift, and Wagner, shows clearly that the agent was informed that the court desired him to attend the sale and make the property bring the amount of the school debt, and the agent was not misled, or, if at all, was heedlessly misled; the county court can take no advantage of his inattention. Parker v. Railroad, 44 Mo. 415, 421. (4) It is charged that the sheriff's notice of sale is defective, that it does not properly recite the mortgage debt, and that it was not published for twenty days, etc. It was agreed that the notice set out at page four of the record is the notice under which the sale was made. Inspection of that notice will show that the charge is not well founded, and that the notice was all that the law requires. But if the charge were true, it would only be an irregularity, and "the purchaser is not affected by any irregularity in the sheriff's proceedings, * * * unless he has participated in occasioning it, or there has been some departure from the requirements of the law for some fraudulent purpose." Draper v. Bryson, 17 Mo. 71, 84; Curd v. Lackland, 49 Mo. 451, 454; Houck v. Cross, 67 Mo. 151; Rorer on Jud. Sales, sec. 589; Phillips v. Coffee, 17 Ill. 154; Wheaton v. Sexton, 4 Wheat. 503, 506; Maddox v. Sullivan, 2 Rich. Eq. 4; Brook v. Rooney, 11 Ga. 425. But no irregularities were shown, and all the presumptions are indulged in favor of a sheriff's sale until attacked by affirmative evidence in a direct proceeding to set it aside. Rorer on Jud. Sales, sec. 776; Ferrier v. Deutchman, 81 Ind. 390, 393. (5) Madden was, beyond question, a bona fide purchaser at this sale, without any notice whatever of those facts and circumstances between the sheriff and the agent which the respondents claim constitute the grounds of their equities against such a purchaser for a valuable consideration. A court of equity will not interfere on the grounds of accident; for, in the view of a court of equity, such person has as high a claim to assistance and protection as any other can have. Story's Eq. Jur., sec. 108; Admr's of Legion v. Rogers, 12 Ga. 281, 292. "Every reasonable intendment should be made in support of the rights of the purchaser at the execution sale. The execution was regular upon its face, and the purchaser looked to that. He cannot be injuriously affected by any irregularities in the proceedings which resulted in the sale, unless they were of a character to render the proceeding wholly void," etc. Cabell v. Grubbs, 48 Mo. 353, 356. Madden's bid was an offer to purchase, when the property was knocked down to him. The offer was accepted, and became a contract and binding. Payne v. Cove, 3 T. R. 148; Parsons on Contracts [6 Ed.] sec. 480. The purchaser was wholly without blame; why, then, shall he not have the benefit of his purchase, and of the contract, which could be enforced against him? The statute declares that the highest bidder, and such he was, shall be the purchaser.

F. M. Brown and Edwards & Davison for respondents.

(1) A sheriff selling property under execution is agent of both plaintiff and defendant, and is bound to protect the interests of both parties. Conway v. Nolte, 11 Mo 74; Shaw v. Potter, 50 Mo. 281; State v. Type Foundry, 72 Mo. 285. (2) A sheriff is not bound to accept a bid without reserve, and if he can see that a sacrifice of property will be prevented by a little delay, he should return, "no sale for want of bidders." Authorities supra. (3) While, ordinarily, inadequacy of price is not alone sufficient cause for setting aside an execution sale, which is, in other respects, unexceptional, and when the sale is made to a bona fide purchaser, yet when the inadequacy is such as to amount to a badge of fraud, or, together with other circumstances, is such as to shock the moral sense, and particularly when surrounded by indications of hardship and unfairness, the sale will be set aside. Rorer on Jud. Sales [2 Ed.] secs. 1086-7; Railroad v. Brown, 43 Mo. 294. Here, property worth from one thousand to twelve hundred dollars, was sold for one hundred dollars -- one-tenth of its value, or less. (4) When inadequacy of price is combined with accident, mistake, inadvertence, or appearances of fraud, or unfairness, the sale will be set aside. McKee v. Logan, 82 Mo. 528; Rorer on Jud. Sales [2 Ed.] sec. 1095; Howell v. Hester, 3 Green Ch. [N. J.] 266. The case last cited was one in which a subsequent incumbrancer was prevented by the accident, or mistake, of her own agent from attending the sale and bidding, and the price obtained was inadequate. The court set aside the sale. This case is almost parallel to the one at bar. (5) A sale will be set aside for misapprehension caused by the officer conducting it. Rorer on Jud. Sales [2 Ed.] sec. 566; Lefevre v. Laraway, 22 Barb. 173. (6) Where the property of infants is sacrificed by the neglect, fraud, or misapprehension of their guardian, they will be relieved by setting aside the sale, and by a re-sale. Rorer on Jud. Sales [2 Ed.] sec. 438; Lefevre v. Laraway, 22 Barb. 167. The order of re-sale in such case may be made on the court's own motion in its capacity of universal guardian of all infants, and by virtue of its obligation to exercise a general superintendence and protective jurisdiction over all their persons and property. Rorer on Jud. Sales, secs. 566, 1086; Lefevre v. Laraway, 22 Barb. 175; 2 Story's Eq. Jur., sec. 1334. In the case at bar the county is the trustee of the school fund, and the children of the county and the different school districts are the beneficiaries; and this case comes directly within the rules of law last above recited. (7) A sheriff's sale will be set aside for accident, mistake, or inadvertence, when shown to have operated injuriously upon the interests of the complainant. McKee v. Logan, 82 Mo. 528. (8) The court had full power over the execution of its process until the...