Hicks v. Perry

• Decision Date: 31 May 1842
• Citation: 7 Mo. 346
• Parties: HICKS & HAMMOND v. PERRY.
• Court: Missouri Supreme Court

7 Mo. 346

HICKS & HAMMOND

v.PERRY.

Supreme Court of Missouri.

May Term, 1842.

APPEAL FROM THE WASHINGTON CIRCUIT COURT.

COLE, for Appellants.

SCOTT & ZEIGLER, for Appellee.

SCOTT, J.

An execution was issued from the Circuit Court of Washington county, against John C. Scott, John Perry, and Joseph M. Stephenson, for the sum of $310 07 3/4, directed to the sheriff of Jefferson county. Under this execution, the sheriff, Hammond, levied on two tracts of land, containing, together, 204 acres, in each of which Scott was entitled to an undivided half, although doubts were entertained as to the extent of his interest. After advertising that the lands would be sold between the hours of nine and ten o'clock, of the day appointed for the sale, the sheriff on that day, during the session of the Circuit Court, sold the two tracts together, and not in parcels, for the sum of five dollars, there being no higher bid; Hicks was the purchaser. Under this state of facts, John Perry, one of the defendants in the execution, and who, it appears, is a mere security for Scott, moved the court to set aside the sale, on the ground of irregularity; and alleged as a further cause, that there was fraud and collusion between Hammond and Hicks: all fraud and collusion between the appellants, was expressly denied, and there was no evidence of its existence. The court set aside the sale, and the cause is brought here by appeal. The land sold was the property of Scott. There is no allegation that he is unable to pay his debts, or that he is colluding with the appellants, nor is there any circumstance from which such presumption can arise. This necessarily leads to the inquiry, why should Perry interfere in this matter? and had he even a right to interfere, does not the silence and acquiescence of Scott repel the charge that there was a sacrifice of the property. When more property is sold than is sufficient to satisfy a debt, and the property could have been sold in parcels, a court would set aside the sale. This appears to be the meaning of the 26th section of the act concerning Executions. In this case, the property sold did not pay the debt, and it does not appear that the biddings were affected by the circumstance that both tracts were sold together. We do not mean to say, that a sheriff would be justified in offering at the same time, different tracts of land, whether contiguous to each other or not, where it appears that a diminished price was the consequence of such a mode of sale....