Kelly v. Hurt

• Decision Date: 31 October 1875
• Citation: 61 Mo. 463
• Parties: WM. T. KELLY, Appellant, v. OSSIMUS HURT, Respondent.
• Court: Missouri Supreme Court

61 Mo. 463

WM. T. KELLY, Appellant,

v.OSSIMUS HURT, Respondent.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Saline County Circuit Court.

Yerby & Shackleford, for Appellant, cited Stover vs. Boswell, 3 Dana, [Ky.] 232; Patterson vs. Carneal, 3 A. K. Marshall, 618; Davidson vs. McMurtry, 2 J. J. Marshall, 68; Adams vs. Keiser, 7 Dana, 208; Shropshire vs. Pullen, 3 Bush., 512; Tyler vs. Wilkerson, 27 Ind., 450; Reed vs. Devin, 7 Ind., 189; Rowley vs. Brown, 1 Binn., 61; Good vs. Comfort, 39 Mo., 313; Chesley vs. Chesley, 54 Mo., 347; Banks vs. Bales, 16 Ind.; Thompson vs. Torneb, 2 Peters, 157; Wilkerson vs. Lackland, 2 Peters, 627; Shrevers, lessee, vs. Lynn, 2 How., 43; Shelton vs. Tiffin, 6 How., 163; Harshey vs. Blackman, 20 Iowa, 161; Morris vs. Hoglie, 37 Ill., 150; Johnson vs. Baker, 38 Ill., 98; Smith vs. McCutcheon, 38 Mo., 415; Latimer vs. Union Pacific R. R., 43 Mo., 105; Abbot vs. Shepperd, 44 Mo., 233; Hewit vs. Weatherberry, 57 Mo., 276; Rector vs. Hart, 8 Mo., 448, and cases there cited; Benkendorf vs. Vincenz, 52 Mo., 441; Chesley vs. Chesley, 54 Mo., 347; Id., 49 Mo., 540; Rover Jud. Sales, p. 217, § 600; Id., p. 293, §§ 865, 870; Tyler vs. Wilkinson, 27 Ind., 450; City of San Francisco, vs. Pixley, 21 Cal., 56; Rover Jud. Sale, 254, § 731, and cases there cited; Id., p. 293, § 867; Carlisle vs. Carlisle, 7 J. J. Marsh., 625; Hecks & Hammond, vs. Perry, 7 Mo., 346; 1 Sto. Eq. Juris., 9th ed., p. 377, § 400; Wagn. Stat., 1012, § 2; Henderson vs. Dickey, 50 Mo., 161; Duvall vs. Tinsley, 54 Mo., 93.

Letcher & Strother, for Respondent, cited Meir vs. Zelle, 31 Mo., 331; Cabell vs. Grubbs, 48 Mo., 353; Stine vs. Wilkerson, 10 Mo., 94; Carter vs. Abshire, 48 Mo., 300; 30 N. Y., 173; Gray vs. Shaw, 14 Mo., 346; 43 Mo., 221; Wagn. Stat., fifth clause, p. 1012, § 2.

HOUGH, Judge, delivered the opinion of the court.

This case comes before us by appeal from a final judgment of the circuit court of Saline county, sustaining a demurrer to the plaintiff's petition.

The petition was in the nature of a bill in equity to set aside a sale, made by the sheriff of Saline county, of certain lands mortgaged by the plaintiff to said county, to secure a loan of $500 made by said county to the plaintiff in 1849. It alleges that the lands so mortgaged comprised two eighty-acre tracts and two forty-acre tracts which do not adjoin each other, and that one tract of forty acres lies three or four miles from the remainder of said lands; that on the 10th day of May, 1864, said sheriff offered for sale, and did sell the whole of said lands in mass for the sum of $1,380 to satisfy the sum of $1,082.66, then due upon said mortgage, when the same was susceptible of division, and when it was unnecessary to sell the whole of said lands to satisfy said mortgage debt, and that at said sale the defendant (Hurt) became the purchaser; that said lands so sold by the sheriff were reasonably worth the sum of $4,500, and if they had been divided and sold in parcels they would have brought a much larger sum than was paid for the same by the defendant, and that plaintiff had no knowledge of the sale so made, in time to move to set the same aside. Plaintiff offered to pay the sum bid by defendant, with interest, and asked that said sale be set aside, and that defendant be required to account for the rents and profits during the time he had been in possession, and also asked damages for certain injuries, in the nature of waste, committed by the defendant on said lands, and for general relief.

The demurrer stated three grounds of objection to the petition; first, that it did not state facts sufficient to constitute a cause of action; second, that it failed to charge any fraud or unfairness on the part of the officer, or on the part of the defendant; and, third, that several causes of action had been improperly united.

The positions assumed by the defendant's counsel to support the judgment of the circuit court, which are not particularly set forth in the demurrer are: first, that the validity of Hurt's purchase was brought in question in the case of Hurt vs. Kelly, (43 Mo., 238), and that the plaintiff in this suit should have set up any equities he may have had as a defense in that action; second, that the petition is defective in not alleging that the sale in mass was neither requested nor desired by the defendant in the execution; that the law presumes that the officer did his duty, and if the land was susceptible of division and was sold in lump, the law will presume that it was sold in that manner by the request of the defendant, unless he negatives that desire by averment and proof; third, that the plaintiff's claim is stale; and, fourth, that the sheriff was but a trustee under the mortgage, and that mere inadequacy of price will not furnish ground for equitable interference.

We put aside at once the point as to the staleness of the plaintiff's claim. The sale took place in May, 1864, and this suit was instituted in January, 1874, less than ten years thereafter. The statute of limitations in this State applies to all civil actions--to those which were formerly denominated suits in equity as well as to actions at law. Mere lapse of time, short of the period fixed by the statute of limitations, will not bar a claim to equitable relief, where the right is clear, and there are no countervailing circumstances. In doubtful cases, long or unreasonable delay may sometimes turn the scales. (Davis vs. Fox, 59 Mo., 125.) In the present case no facts are before us save those which are stated in the plaintiff's petition, and they are admitted by the demurrer to be true, and the relative equities of the parties as they may in fact exist apart from the pleadings, do not appear. The only question, therefore, before us at this time, is, as to the right of the plaintiff to relief on the case presented by him in his petition.

The point that the validity of Hurt's purchase has been heretofore settled by this court in favor of the defendant in this action, in the case of Hurt vs. Kelly (43 Mo., 238), cannot be considered by us now. There is no plea in this case that the subject matter of this suit has become res judicata, and whether that suit is for any reason a bar to the present one, cannot be determined on this demurrer.

Before proceeding to consider the second position of defendant's counsel, it may be well to remark that though the petition fails to allude to any default in the payment of principal or interest, such default may be inferred from the fact that while the plaintiff borrowed only $500, there was due to the county at the time of the sale more than $1,000. Nor is it stated in the petition that there was any order of the county court requiring the sheriff to sell under the mortgage; but that such order was made, may be inferred from averments in the petition as to the brcach of duty on the part of the sheriff, and the inability of the plaintiff to make any motion to set the sale aside. The sale will therefore be treated as having been made under an order of the county court. Besides, the parties have so treated it in argument, though the defendant also claims that the sheriff acted simply as trustee under the power contained in the mortgage.

The statute under which the loan was made and the mortgage taken, gives to the order of the county court, directing the sheriff, after default, to levy the debt and interest of the mortgaged premises, the effect of a special fieri facias on a judgment of foreclosure, and requires that it shall be proceeded upon accordingly. The statute in relation to mortgages provides that a special fieri facias on a judgment of foreclosure shall be executed and returned as executions in ordinary civil suits. The statute in relation to the sale of real property under execution is as follows:

Sec. 30. “When an execution shall be levied upon real estate, the officer levying the same shall divide such property if susceptible of division, and sell so much thereof as will be sufficient to satisfy such execution, unless the defendant in the execution shall desire the whole of any tract or lot of land to be sold together, in which case it shall be sold accordingly.”

There is no direct averment in the petition that Kelley neither desired nor directed the sheriff to sell the whole of said land together, and the absence of such averment, it is claimed by defendant's counsel, is a fatal omission. In support of this position the case of Meir vs. Zelle (31 Mo., 331) is cited, wherein Judge Ewing, who delivered the opinion of the court, said: “The plaintiff's c...