Davis v. McCann
Decision Date | 01 March 1898 |
Parties | DAVIS et al. v. McCANN. |
Court | Missouri Supreme Court |
Appeal from circuit court, Howell county; W. N. Evans, Judge.
Bill by Eliza B. Davis and others against George McCann. From a judgment for plaintiffs, defendant appeals. Affirmed.
A. H. Livingston, for appellant. C. W. Sloan and Jas. Orchard, for respondents.
This is a proceeding by bill in equity to set aside a sheriff's sale, and deed to certain land described in said deed, which was sold by said sheriff under the following circumstances: Plaintiffs sold to one J. R. Donneworth a farm of 40 acres of land in Howell county, Mo., for $2,400, on which there was paid at the time $1,050, and, to secure the payment of the balance of the purchase money, Donneworth and his wife executed to plaintiffs, on the 4th day of April, 1893, their note for $1,350, payable 12 months thereafter, secured by mortgage on the land. When the note became due default was made in its payment, and plaintiffs placed the same in the hands of N. B. Wilkinson, an attorney residing at Willow Springs, in said county, to bring suit for the foreclosure of said mortgage. Wilkinson brought suit on the note and for foreclosure of the mortgage, upon which final judgment was rendered in the Howell circuit court, December 6, 1894. The amount of the judgment was $1,571.90. At the time of the rendition of the judgment and sale by the sheriff, two of the plaintiffs resided in Colorado, and the other two in Cass county, this state. On the 19th day of February, 1895, the clerk of said court, without the knowledge or consent of plaintiffs or their attorney, issued an execution upon said judgment in favor of two of the plaintiffs therein, viz. Eliza B. and James T. Davis, which recited that the judgment was rendered on the 15th day of December, 1894, whereas, in fact, it was rendered on the 6th day of December, 1894. The land was sold by the sheriff of said county under the execution on the 20th day of April, 1895, during the setting of the circuit court of said county, and defendant became the purchaser thereof at the price of $6, and received the sheriff's deed therefor. The petition to set aside the sale was filed at the same term of court at which the sale was made by the sheriff. The land was worth, at the time of defendant's purchase, about $1,500. The defendant was not a party to the suit on the note and to foreclose the mortgage, nor was he in any manner interested therein. The trial court rendered judgment setting aside the sheriff's sale, and also the deed made by him to the defendant. Defendant appealed.
Defendant objected to the introduction of any evidence under the petition, upon the ground that the facts therein stated, if true, would not authorize the setting aside...
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