Holdsworth v. Shannon

• Decision Date: 31 January 1893
• Citation: 21 S.W. 85,113 Mo. 508
• Parties: Holdsworth v. Shannon, et al., Appellants
• Court: Missouri Supreme Court

21 S.W. 85

113 Mo. 508

Holdsworth v. Shannon, et al., Appellants

Supreme Court of Missouri, Second Division

January 31, 1893

Appeal from Jasper Circuit Court--Hon. M. G. McGregor, Judge.

This proceeding was instituted in the Newton circuit court to set aside a sale of the northeast quarter of section 25, township 24, range 32 in that county. The sale was made by Shannon sheriff, acting as trustee in lieu of J. B. Watkins who had declined to act.

On October 1, 1883, one Ida F. Hibbard executed her note to Holdsworth the plaintiff for the sum of $ 600, and to secure it gave a deed of trust of even date on the property mentioned, and also on the southwest quarter of the same section, etc. The note matured October 1, 1888, and remained unpaid. The sale mentioned occurred April 24, 1889, and the petition herein was filed May seventh next thereafter. Other than facts already mentioned, the substance of the petition is the following: That plaintiff sent an agent to attend the sale and bid on the property to the full amount of the debt due, so as to secure his debt, then amounting with interest to $ 720; that this agent was on his way to Neosho and would have reached there, and did reach there in ample time to have attended the sale had it been made within the usual hours but that the sheriff-trustee, in disregard of his official duties, sold the land in question at an unusual hour, to-wit at ten thirty A. M. of the day of sale, when plaintiff's agent was not present; that said sheriff, acting in collusion with defendants Hinton and Harbison, sold the northeast quarter aforesaid to them for $ 121, when there were no other bidders present; that plaintiff's agent arrived at the courthouse door at twelve o'clock M. of the day of sale and Shannon the sheriff, having left town, went to his deputy Johnson, and demanded a resale of the property described in the deed, and then and there offered to bid for the same the full sum then due on the note and costs, which demand and offer said deputy denied and rejected; that Hinton and Harbison were fully aware that the sale was made at an unusual hour; that the property was worth much more than the bid made therefor, to-wit, $ 1000; that plaintiff is ready and willing, upon a resale of the premises, to bid the full amount of the debt due and all costs; that Ida F. Hibbard the debtor, is wholly insolvent, so that if said sale be not set aside, plaintiff cannot recover or realize the amount due on said note; plaintiff, therefore, prays that said sale and all proceedings thereunder be set aside, and for other and further relief.

The answer of the defendants was a general denial.

The testimony of the sheriff, as taken from the abstract of plaintiff, with emendations and additions from the record, is substantially this:

John F. Shannon: "I was sheriff of Newton county in April, 1889 at the time the sale in this case was made, and I made that sale as such sheriff. The sale was made near eleven o'clock A. M. of that day. I do not recollect whether it was before or after that time,--probably a few minutes before. The only thing I recollect it by was the 'Frisco train coming in, and my waiting until after that mail was opened. That train was due at Neosho about ten o'clock I think. J. B. Watkins is the only man representing the mortgagee that I had any correspondence with. The letters received from him were dated at Lawrence, Kansas. The advertisement of this sale was made at the request of J. B. Watkins, through his attorney Patterson. I was expecting some one from Lawrence, Kansas, to be present at the sale, and that is the reason I waited for the 'Frisco trains, one from the east, the other from the northwest. I don't recollect at what time the train from the northwest reached Neosho. It was directly after that train began to run into Neosho, and I don't know--or did not then--what its time was. I just never thought of that train. I think trains were running regularly over that road at that time; but I do not know how long they had been. I do not recollect, but think the trains over this road arrived about twelve o'clock M. I did not think anything about that train. If I had thought about it, more than likely I would have expected the man that way; but I did not. I generally began my sheriff sales from half-past one o'clock to two o'clock in the day. In the course of my duties as sheriff I had never made a sale under a trust deed or an execution as early in the day as I made this one. I usually made them about half-past one, after we got back from dinner. Immediately after making this sale, I went to what is known as the 'Johnson Diggings,' perhaps five miles south of Joplin, and returned about midnight that night. I left a deputy at Neosho, but I left him no instructions regarding this case. I recall as being present at this sale Mr. Hinton, Mr. Cravens, Maj. Harbison, Thomas Lackey, N. H. Manfir. Mr. Hackney, of Carthage, was standing near, and Mr. Hazeltine, of Springfield, were the gentlemen I was going into the country with, and they were waiting for me. I came to make this sale at this time of day in this way: Circuit court was in session, and the day before this a writ of ouster was issued against a party at the 'Johnson Diggings.' The parties to take possession of the land were to be there on the 'Frisco train, and Mr. Hackney and Mr. Hazeltine wanted me to start immediately. I told them I had a sale to make, and would have to wait until the train came in and the mail was opened. I thought some one would come on that train, or that I would get a letter, telling me what to do. Nobody came and no letter. I had asked the real estate men and lawyers in town if they represented the Watkins company, and none of them had any such authority, and, after finding that no one came and no letter of advice, I sold the land and went with these gentlemen to attend the writ of ouster.

"Had it not been for the circumstances I have related, I would not have made the sale at that time of day. In fact I know I wouldn't. It was not the custom. My recollection is that the northeast quarter was sold first. I think, perhaps, there were two or three bids on this. I think Mr. Geyer and Mr Lackey bid on both pieces, but am not sure. I was familiar with lands in that neighborhood, but do not know that I ever saw this land--either before or since. I knew the character of the land, to some extent, at that time, The land in there varies a good deal from the fact that where it lies in the valleys it is very good land, while those flint hills are not so good. But whether this (tract) takes in the flint hills or valleys, I don't know; that would make a great difference to me in the value of the land. It was my judgment that the land as a whole was worth more than it was sold for; but, at the same time, I have sold land there as low as I sold this. I did not pay any attention to the trains arriving on the Splitlog road from the northwest, for these gentlemen who were waiting for me to go with them had a team standing in the street at the time, and as soon as the sale was made I got into the hack and went with them.

"At that time, April 24, 1889, I do not think there was any mail brought in on the Splitlog road. Up to that time, the travel to and from Kansas City had been by way of Pierce City. I was only looking for somebody by the 'Frisco route. The other route never entered my mind at all. I don't recollect whether the Watkins company ever sent me a letter or message that they expected to attend the sale. I have a letter where they asked me to send them a copy of the paper wherein the notice was printed. I did not have any request to defer the sale, in the event that parties did not come. There was a question asked me awhile ago, whether they (the Watkins company) would have somebody on the ground? From reading this letter, I see, in their first letter they asked me to recommend to them some attorney at Neosho to attend to their business; and I recommended Mr. Cravens either in my reply or else I showed the letter to him and he promised to write them and told me he had written them, and my understanding from Mr. Cravens was that he would attend to the sale, and he said on the morning of the sale, 'that he guessed he would attend to it.' He was present at the sale and I supposed he would be a bidder. The date of sale was fixed in the notice by The Watkins Land & Mortgage Company. They furnished the form of notice. There was no collusion between me and these purchasers at all, more than between me and every real estate man there, and every lawyer that I inquired of that morning. I notified them that this land was to be sold, and that it was nearly time for the sale; but I had no letter of advice, and did not know what to do. As far as any contract is concerned between the parties to buy that land, or between me and Mr. Hinton and Mr. Osborne, or any other parties to buy the land, there is nothing in it. Mr. Hinton and myself officed together there, at that time. He was there at the time, and, just before going out to sell the land, I spoke to him and said I was going to sell some land; and whether he said he would bid or not, I do not know; but he followed me out, and I believe he said he would bid on it. I may have told him what the land was. The bulk of my sales have been execution sales, but I have never sold before or since a piece of land at this hour. I have sold land at three o'clock, and sold one piece a short time ago at four o'clock. If I ever made a fair sale in my life, it was this one, for I took the pains to speak of the sale to a great many, and spent over an hour that morning trying to find the agent of the company. I put off the sale to as late an hour as I could, in the discharge of my other duties as...