DiLeo v. Hunter
| Decision Date | 15 January 1974 |
| Docket Number | No. 35108,35108 |
| Citation | 505 S.W.2d 112 |
| Parties | Senatro W. DiLEO et ux., Plaintiffs-Respondents, v. James T. HUNTER et al., Defendants, Delbert Hunter, Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
A. H. Juergensmeyer, Warrenton, Rosenblum & Goldenhersh, Jack M. Mazur, Clayton, for plaintiffs-respondents.
Ervin D. Davis, St. Charles, for appellant.
This is an appeal from an order of the circuit court of Warren County entered November 27, 1972 overruling the appellant-Delbert Hunter's motion, filed on October 16, 1972, to set aside a partition sale and order a new sale. The trial court made findings of fact and conclusions of law.
These proceedings commenced on May 19, 1972 by the filing of a petition for partition of land alleging that the plaintiffs, Dr. and Mrs. DiLeo and several defendants including Delbert Hunter and his wife Marie were tenants in common of some 149 acres of land in Warren County. The petition prayed that the land be partitioned, sold and divided among the respective owners. In due time the court decreed that the land be sold and the proceeds divided. On October 7, 1972 a partition sale was conducted by the deputy sheriff, and the property was sold to Dr. DiLeo for $37,500.00 as the highest bidder.
On October 16, 1972, Delbert Hunter moved to set aside the sale and order a new sale because Mr. Hunter believed the $37,500 bid was his bid and the deputy sheriff refused to reopen the bidding. Hunter also contended that § 528.370 and 513.225, RSMo, V.A.M.S., were not complied with. 1 Hearing on the motion to set aside the sale was held on November 9, 1972 in Warren County.
The evidence on the motion to set aside the partition sale is contradictory. There were several people at the sale on October 7, 1972. Mr. Hunter, who owned a 1/18 interest in the property, testified that he indicated to the deputy sheriff who was conducting the sale that he was bidding in terms of 'and five (hundred)' and that he bid $37,500 for the property and the sheriff 'struck down the propert.' Hunter stepped forward thinking he was the high bidder and was prepared to deposit ten percent of the bid, but the sheriff indicated that Hunter was not the high bidder and that it was 'the man in the rear'--Dr. DiLeo. Mr. Hunter in his motion and upon hearing offered to and was prepared to bid the sum of $41,250 for the property. He stated that the sheriff would not accept his tender of ten percent--because 'he had closed the sale.'
Dr. DiLeo, the deputy sheriff, and the clerk of the partition sale testified in the respondent-DiLeo's case. Dr. DiLeo testified that his final bid was $37,500; that prior to that bid the bid was $37,000 made by Mr. Hunter; that no higher bid was made; that he indicated his bid by holding up his hand and nodding 'another Five Hundred.' He then went to the sheriff's office to offer the ten percent. He testified that his earlier bid was $36,500, that Mr. Hunter bid $37,000, and then he made a bid of $37,500. He heard Mr. Hunter tell the sheriff that Hunter thought he was the last bidder.
The deputy sheriff who conducted the sale, Borden E. Meyer, testified that Dr. DiLeo was the purchaser at the partition sale and highest bidder by paying $37,500 for the property. The next highest bid was $37,000 made by Mr. Hunter. He stated he sold the property 'to the man in the rear, Dr. DiLeo.' He acknowledged that Mr. Hunter came up to him and indicated, 'That was my bid,' and he said, 'No, Thirty-Seven Thousand was your bid; Thirty-Seven Five was Dr. DiLeo's bid.' He denied that Mr. Hunter tendered any money on the day of the sale. When he announced $37,500 three times, he looked at Mr. Hunter who 'didn't do nothing.'
The clerk testified that the bidding progressed from $36,000 to $36,500 to $37,000 and finally to $37,500. She listed the final bid as that of Dr. DiLeo when the sheriff announced his name.
On November 27, 1972, the trial court found that DiLeo and Hunter were active bidders at the sale, that shortly before the sale was completed Hunter bid $37,000 and DiLeo then bid $37,500 following which the deputy sheriff 'looked at defendant Hunter and asked for a higher bid, but received no indication from said defendant that he desired to bid higher.' The court found that DiLeo was the highest bidder at said sale and was entitled to receive a deed from the sheriff, and that the sheriff's report of sale, filed with the court 'should be approved and the sheriff ordered to execute a deed to plaintiff DiLeo.' The court in its order overruled Hunter's motion to set aside the sale and order a new sale, approved the sheriff's report of the sale, and ordered the sheriff to make a deed to DiLeo and distribute the net proceeds to the persons entitled thereto.
The appellant Hunter contends that the trial court erred in not setting aside the sale because of the 'irregularity and mistake during...
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