Hammond v. Scott

• Decision Date: 31 July 1848
• Parties: HAMMOND ET AL. v. SCOTT.
• Court: Missouri Supreme Court

12 Mo. 8

HAMMOND ET AL.

v.SCOTT.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM JEFFERSON CIRCUIT COURT.

COLE, for Appellants.

1st. It is admitted that fraud will vitiate a sheriff's sale, and that a purchaser cannot hold property who participated in such fraud. 2nd. It is insisted that where the purchase is without fraud, and for a valuable consideration, public policy requires that a party injured by the act of the sheriff, should be left to seek his redress in damages, instead of being permitted to pursue his property. 1 Mo. R. 754, Kean, v. Newell; Hicks & Hammond v. Perry, 7 Mo. R. 346. 3rd. In the absence of fraud and abuse of authority, a court of equity cannot, without a manifest violation of its principles, grant relief. To set aside a sheriff's sale there must be proof of fraud. Woods v. Monell, 1 Johns. Ch. R. 501. See also as to sheriff's sales, 8 Mo. R. 454; 1 Mo. R. 754; 8 Mo. R. 177; 7 Mo. R. 346; 9 Mo. R. 783; 4 Cranch, 403; 8 Johns. 333. 4th. All fraud and abuse of authority being expressly denied by the answers of defendants below, and not disproved by complainant, must be taken as true; and the decree consequently erroneous, and should therefore be reversed. 5th. It is insisted that the instructions refused should have been given, and that the error is prejudicial, and that the decree should be reversed on this ground also.

FRISSELL, for Appellees.

1. It is insisted for the defendant in error that the decree is for the right party, and from the circumstances as alleged in the bill, and proved before the court, the decree ought not to be reversed. 2. That the great inadequacy of price is sufficient alone for the court to set aside the sale, the more especially as defendant in error offered to pay and has paid the representatives of Hicks the purchase-money, interest and costs. 1 Story's Com. on Equity, 324; 17 Vesey, 20, Gowland v. De Farre; Bowes v. Heaps, 3 Ves. & Bea. 117; 2 Vernon, 26, Berry v, Pitt. 3. The acts of the sheriff were so irregular in the advertising and in the selling two tracts together without the consent of Scott, and the result was so oppressive upon him that fraud might well be presumed, and the sale set aside for fraud. Hicks might well be charged with actual fraud. 9 Pick. 212; 2 Ves. & Bea, 117.

MCBRIDE, J.

John C. Scott filed his bill in the Circuit Court of Jefferson county, against John Hammond and Robert D. Hicks, in which he alleges that on the 15th November, 1838, the County of Washington recovered a judgment against him as principal, and John Perry and Joseph M. Stevenson as his securities, for the sum of $318 07 for debt and damages and the costs of suit, upon which judgment an execution issued on the 31st October, 1839, directed to the sheriff of Jefferson county, which came to the hands of the defendant, Hammond, then acting sheriff of Jefferson county, who levied the same upon the complainant's interest in the east half of southwest quarter of section 4, township 38, range 5, containing 80 acres, and on the fractional southwest quarter of section 4, township 38, range 5, containing 124.71 acres; both of said tracts being valuable in consequence of their having mineral on them, and for farming purposes. That said Hammond advertised the same to be sold on the 10th December, 1839, between the hours of nine and ten o'clock of the forenoon of said day, an hour much earlier than was usual for making such sales, and offered the same for sale, there being but few persons present, when the land was sold to Robert D. Hicks, for the sum of five dollars; both tracts having been offered and sold at the same time. That his interest in said land was an undivided equal half, and was reasonably worth two or three hundred dollars. That he was non-resident of the county, and had no knowledge whatever that the land had been levied upon and was to be sold. The bill further charges that Perry, one of the defendants in the execution, had an agent authorized to attend the sale, and make the land sell for its value; but in consequence of the sale having taken place at so carly an hour, and both tracts having been sold at the same time, the agent did not reach the place of sale until after the land was struck down; that immediately thereafter the agent offered Hicks, the purchaser $20 for his bargain, which he refused to take, and demanded $50; but the agent not being authorized to pay so great a sum, declined the proposition. The bill further charges the defendants with a fraudulent combination to injure and oppress the complainant; and alleges that the defendant has no other estate out of which to pay the judgment at law, and unless the sale of the land be set aside and the same be again sold, that his securities will be compelled to pay the said judgment.

The defendants filed their separate answers to the...