Hall v. Giesing
| Decision Date | 02 March 1914 |
| Citation | 165 S.W. 1181,178 Mo.App. 233 |
| Parties | WILSON HALL, Sheriff, ex rel., Respondent v. FRANK GIESING, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.
AFFIRMED.
Judgment affirmed.
Harris & Finley for appellant.
J Richard Garstong, E. W. Hinton and N. T. Gentry for respondent.
--In this case the sheriff of Boone county sues at the relation and to the use of the heirs of John T. Giesing, deceased, to recover of defendant the sum of $ 1000, that being the difference between the amount of defendant's successful but unpaid bid at a partition sale of deceased's land and the amount that was afterwards obtained for the land upon a subsequent sale.
Defendant was also one of the heirs of said John Giesing, deceased, and was the plaintiff who brought the partition suit against the other heirs who are plaintiff's relators in this suit.
At the October, 1911, term of the Boone county circuit court judgment of partition was rendered in said suit and the land ordered sold.
Thereafter at the January, 1912, term, to-wit, on January 26, 1912, the sheriff offered said land for sale according to law at public auction to the highest bidder for cash, and at such sale the defendant became the highest and best bidder therefor at the price and sum of $ 7000 and the land was stricken off and sold to him for that amount.
The sheriff at once entered in his sales-book the name of the defendant as the purchaser and $ 7000 as the purchase price opposite the description of the land sold and a copy of the advertisement showing the suit and decree under which the sale was made. This also gave the names of the parties to the suit and the date of sale.
After making the sale and waiting two or three hours for the defendant to pay the amount of his bid, the sheriff demanded the money and finally told defendant he would have to sell the land again if defendant did not pay it, and defendant said he could not get the money.
Thereupon the land was again put up at public auction, and the highest bid obtainable was only $ 6000, or $ 1000 less than defendant had agreed to give. This bid was paid by the purchaser and the sale to him was approved by the court.
The sheriff then instituted this suit. Defendant's answer set up the plea of the Statute of Frauds and denied that there was any contract binding on him to purchase the land.
The case was tried by the court without a jury and a judgment was rendered against defendant for $ 1000 from which he appeals.
Defendant offered testimony tending to show that the resale was by agreement of parties, but as there was testimony to the contrary and no findings of fact or declarations of law were asked or given the judgment of the court must be accepted as finding that there was no such agreement.
Defendant's main objection is that as sheriff's sales are within the Statute of Frauds, and that as our statute (Section 2783, R. S. Mo. 1909), concludes with the words "and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract," therefore, the sheriff had no authority to bind defendant because defendant had not so authorized him in writing.
It may be well to observe that the cause of action against a recalcitrant or defaulting bidder is given by statute. [Secs 2223 and 2593, Revised Statutes 1909.] And the statute nowhere makes the bidder's liability depend on the fact that he has authorized in writing the sheriff to act for him. The concluding portion of the statute of frauds above quoted was added to the section in 1887. [Laws of 1887, p. 195.] Consequently, defendant argues that the cases of Wiley v. Robert, 27 Mo. 388; Stewart v. Garvin, 31 Mo. 36; Tull v. David, 45 Mo. 444; and Springer v. Kleinsorge, 83 Mo. 152, are not controlling since they were decided before the amendment made to the statute in 1887. This view is derived from a remark in Dunham v. Hartman, 153 Mo. 625, 632, where Judge VALLIANT says: "In the one case, if the law were still as it was when Stewart to use v. Garvin, 31 Mo. 36; Tatum v. Holliday, 59 Mo. 422; Springer v. Kleinsorge, 83 Mo. 152, were decided he would have the authority as the implied agent of the bidder to make a memorandum to bind him in the face of the Statute of Frauds." In that case, however, Judge VALLIANT was not talking about a sheriff executing a decree of court to which the bidder sought to be bound was a party and which he authorized the court to make. The sheriff in that case was a mere substitute for a trustee named in a deed of trust, and was therefore acting in his individual capacity. For this reason Judge VALLIANT said: "We hold that in this case the plaintiff was only a substituted trustee acting in...
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