Hannibal & St. Joseph R.R. Co. v. Brown

• Decision Date: 28 February 1869
• Citation: Hannibal & St. Joseph R.R. Co. v. Brown, 43 Mo. 294 (Mo. 1869)
• Parties: HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant, v. BROWN and LANDER, Respondents.
• Court: Missouri Supreme Court

43 Mo. 294

HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant,

v.BROWN and LANDER, Respondents.

Supreme Court of Missouri.

February Term, 1869.

Appeal from Fourth District Court.

The facts appear in the opinion of the court.

Carr, Hall & Oliver, for appellant.

I. The demurrer of defendants was improperly sustained. After the reversal of judgment in the case of Brown v. Plaintiff, defendant's title failed, and plaintiff was entitled to have sheriff's deed to defendant set aside. (Gott v. Powell et al., 41 Mo. 416; 15 Wis. 289; Simmons v. Catlin, 2 Caines, 62; Harrison v. Doe, 2 Black, 2.)

II. It is admitted that mere inadequacy of consideration is not of itself sufficient to justify a court in setting aside a sheriff's sale. “Still, however, there may be such unconscionableness in the consideration as to constitute a gross imposition; and in such cases courts of equity ought to interfere, upon the satisfactory ground of fraud. And where the inadequacy of the consideration is such as to shock the conscience and confound the understanding of men of common sense, courts of equity will set aside the sale.” It is insisted that the sale in this case is of the character last described. (1 Sto. Eq. § 246; 2 Johns. Ch. 23; 14 Johns. 527.)

III. The law gives to the defendant in an execution the right to select what property shall be sold to satisfy it, and a good officer will always so inform a party to an execution which he may have against him, and will confer with him before he levies it. If the officer neglect this, such neglect will not of itself render his acts illegal. But when there has been any abuse on the part of the officer, or collusion with the plaintiff or others, the court will set aside the sale. It would seem to be impossible to conceive a greater abuse on the part of the sheriff than the sale, as in this case, of $118,000 worth of property for $35. (Nelson v. Brown, 23 Mo. 21; Duncan v. Matney, 29 Mo. 376; Reynolds v. Nye, Freeman's Ch. 462.)

IV. A sheriff is the agent of both plaintiff and defendant in an execution in his hands; and in making a sale under execution he should conduct it in such manner as to promote the interest of all parties concerned. A power to sell does not give the power to sacrifice. (Conway v. Nolte, 11 Mo. 76; 2 Tuck. Com. 361.)

V. It was the duty of the sheriff to sell the land in suit in the smallest legal subdivisions of which it was susceptible. This he did not do. And although such an irregularity is not always fatal to the sale, yet it will be fatal when the sale was at a price grossl inadequate. In such a case the purchaser will be held to see that the law is complied with literally and exactly. (23 Mo. 21; Hicks & Hammond v. Perry, 7 Mo. 346; Rector v. Hart, 8 Mo. 461; 2 Paige, 488; Groff v. Jones, 6 Wend. 524; 13 Wend. 24, 30; 24 Wend. 522; Lashley v. Cassell, 23 Ind. 600.)

VI. It is a mockery to call the transaction in this case a sale. Land worth over $100,000 was sold for $35; land worth $10 per acre was sold for one-third of a cent an acre. It is an abuse of terms to call such a thing a sale. It was a gift. It was employing the form of law to transfer the property of plaintiff to defendant for nothing.

Burgess, for respondent.

The demurrer in this cause was well taken, and properly sustained by the court below. The petition does not state facts sufficient to constitute a cause of action, inasmuch as it does not allege that there was any unfairness in conducting the sale of the land; but on the contrary it shows that the sale was conducted in the usual manner. And mere inadequacy of price is no ground for setting a sale aside where there has been no unfairness in regard to the matter. (Meir v. Zalle, 31 Mo. 331; Hammond v. Scott, 12 Mo. 9; Ayres v. Baumgartner, 15 Ill. 444.) The courts of this State are inclined to uphold judicial sales where there has been no unfairness in conducting them, and especially in cases of this kind, where, if any injury has resulted to the plaintiff, it was by its own negligence in not paying off and satisfying the execution.

WAGNER, Judge, delivered the opinion of the court.

It is deemed unnecessary to notice all the questions that have been raised by counsel, as the determination of one point is decisive of the case. Among other things, the petition alleges that at the October term, 1863, of the Linn County Circuit Court, the defendant Brown recovered judgment against the plaintiff for the sum of $105 for his debt and damages, and $39.15 for his costs; and that the plaintiff here, defendant in said suit, took an appeal from the judgment of the Circuit Court to the Supreme Court; and that the Supreme Court, at the February term thereof, 1866, reversed said judgment and declared the same null and void; that the defendant Brown employed and retained defendant Lander as his attorney and counselor to aid and assist him in the conduct and management of the said cause, and the issuing of execution on said...