Conway v. Nolte

• Citation: 11 Mo. 74
• Parties: CONWAY v. NOLTE.
• Decision Date: 31 October 1847
• Court: United States State Supreme Court of Missouri

11 Mo. 74

CONWAY

v.NOLTE.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

EAGER & HILL, for Appellant. The sheriff was entitled to judgment on the motion--1. Because the sale was advertised between the hours of 9 and 5 o'clock, for cash, and the defendant bidding under it, failed to pay or offer to pay on the day of sale. See Rev. Code 1845, p. 483, § 42. 2. The statute is mandatory, and the officer was bound to sell for cash between the hours specified in the advertisement, and the defendant knew the terms of sale. 3. The defendant contends that no deed was ready for the defendant. He came not on the day of sale. Besides, the officer is bound to acknowledge all deeds in open court. He is therefore not bound to acknowledge and prepare a deed before he is paid the purchase-money. The sheriff is a public officer, and his sale is upon terms. No excuse can be offered by a party unless he complies with the terms of the sale. 4. The defendant had not put himself in a condition to dispute the regularity of the second sale. He ought to have tendered the money to the sheriff, or have paid it into court, if he had wished to question the re-sale. 5. The defendant excepts to the transcripts and executions. The Ryan execution and transcript are regular, but the defendant has no right to dispute them. He is not a privy.

SCOTT, J.

This was a motion by Conway, the sheriff of St. Louis county, gainst Nolte, for refusing to pay for property purchased by him at a sale made by the sheriff. Conway having several executions against Mead & Beakman, levied them upon a leasehold estate belonging to the said defendants, which being advertised according to law, was sold at 12 o'clock on the day appointed for the sale, when Charles Nolte became the purchaser, for the sum of $230. The money was required to be paid by five o'clock of the day of sale, as the officer thinks. Nolte not paying it, at a few minutes before five, the property was re-sold, when Mr. Cook became the purchaser for the sum of $50. Nolte did not return on that day, and had no notice of the second sale, and was not told that the property would be re-sold unless the money was paid by the appointed time. It frequently happened that property was not paid for on the day on which it was sold, and a re-sale would not be made until weeks after the first sale. Nolte came to the sheriff on the morning after the sale and informed him he was ready to pay the money for the property he had bid for on the previous day, when the sheriff refused to take it, saying that Cook insisted on his purchase. Nolte resides in St. Louis, on Broadway, and has been a resident of the city for a number of years. He was not recollected by sheriff at the time of sale. The sale to Cook was without any proclamation, and no bidder was present but one of the counsel for the plaintiff in one of the executions. The usual hour for selling property is at 12 o'clock. The sale was conducted by a deputy of the high sheriff, and took place on the 15th March, and the executions were returnable to the 3rd Monday of April following. The motion was overruled, and the sheriff appealed.

We have no hesitation in saying that the officer who conducted the sale acted without the proper discretion in making the re-sale under the circumstances. The law confides in the sheriff as the agent of both the plaintiff and defendant in selling property under execution, and expects that his discretion will be exercised in such manner as to promote the interests of all concerned. A power to sell does not confer a right to sacrifice property. A sheriff, under a fieri facias is not bound to sell without reserve, if he receive a bid. If he can see that property is about to be sacrificed, which would be prevented by a little delay, he is not bound to accept a bid, but...