Lumley v. Robinson

• Decision Date: 31 January 1858
• Parties: LUMLEY, Plaintiff in Error, v. ROBINSON, Defendant in Error.
• Court: Missouri Supreme Court

26 Mo. 364

LUMLEY, Plaintiff in Error,

v.ROBINSON, Defendant in Error.

Supreme Court of Missouri.

January Term, 1858.

1. Where land is sold and a title bond given by the vendor, the interest of the vendee may be seized and sold under an execution against him.

2. Should, however, the vendor, under a judgment rendered in his favor for the purchase money or a portion thereof, levy upon the interest of the vendee and purchase in the same at the execution sale, he will stand just where he stood before the sale; the vendee will still be entitled to a conveyance upon the payment of the purchase money.

3. To entitle the vendee, in such case, to a decree of title, his petition must contain an offer to pay the purchase money due.

Error to Morgan Circuit Court.

The petition of plaintiff, Thomas Lumley, jr., set forth that on the 31st day of July, 1854, he purchased of defendant, Sidney S. Robinson, two several tracts, [describing them,] one tract containing forty acres, the other containing one hundred and sixty acres; that he paid to defendant one hundred dollars in hand, and executed and delivered to defendant three several promissory notes, each dated July 31, 1854--one for $300, payable December 20, 1854; one for $166.66, payable December 20, 1855, and one for $166.66, payable December 20, 1856;--that defendant obligated himself to convey said land to plaintiff upon the payment of each and all of said notes; that Robinson instituted suit upon the note for $300 and recovered judgment April 7, 1855; that he caused an execution to be issued on said judgment; that said execution was levied on the above tracts and also upon another tract owned by plaintiff, Lumley; that on the 11th of October, 1855, the sheriff sold all the right, title and interest of Lumley, and that Robinson became the purchaser; that in making the sale the sheriff sold in a body the first two tracts above mentioned, being the tracts purchased by Lumley from Robinson, and that Robinson purchased the same for $100; that the sheriff afterwards sold the third tract above mentioned to Robinson for $100; that plaintiff had no other right or interest in the tracts first sold than that acquired by his purchase from Robinson; that the promissory notes, except the first, are still outstanding, and are in the hands of defendant; that if he, Lumley, had an interest in the tracts purchased by him from Robinson which was subject to sale under and by virtue of said execution, the levy, sale and purchase by defendant of said lands was and is a complete satisfaction and discharge of all liability or indebtedness on his part to defendant for and on account of the purchase by plaintiff Lumley, and the sale of the other lands was irregular and void; that the sheriff has made a deed, dated October --, 1855, conveying said tracts to Robinson. “Plaintiff asks that the sale of said lands, except those purchased from defendant, be set aside; that the sheriff's deed be delivered up and cancelled, and that defendant be compelled to deliver to plaintiff his two promissory notes above described, and to enter satisfaction of his said judgment, and for all other such orders and judgments in the premises as to the court may seem just.”

The defendant demurred to the above petition. The court sustained the demurrer.

Ross and Edward & Ewing, for plaintiff in error.

I. Lumley had no interest in the land bought by him of Robinson which was subject to sale under Robinson's execution. This being the case, the plaintiff was entitled to have the sale set aside. The defendant may answer that the plaintiff has not prayed for such relief. The plaintiff is entitled to any relief consistent with the facts of the case, whether he has prayed for it or not. If Lumley had an interest which was subject to sale under Robinson's execution, then Robinson takes under his purchase at the sheriff's sale just as any other purchaser would have taken; that is, Robinson said in effect by his bid at the sheriff's sale that he would discharge the encumbrance and pay $100 for Lumley's interest in the land. This is what any other purchaser would have had to do before acquiring a title at such sale. If a stranger had purchased he would have had to pay off the encumbrance before he could demand the title from Robinson. So Robinson must do the same; the law will regard the debt as discharged and require the notes to be cancelled. If the sale to Robinson stands and he is allowed to collect the balance of the purchase money, he manifestly got what no other purchaser at sheriff's sale could acquire, both the legal and equitable title, free from encumbrance; whilst another purchaser would have acquired only Lumley's equitable interest, subject to Robinson's lien for the unpaid purchase money. He buys discharged of the lien, whilst another would have bought subject to the lien. The law allows no judicial sale where one purchaser has such advantage of another. (See McNair v. O'Fallon, 8 Mo. 188; Broadwell v. Yantes, 10 Mo. 398.)

Morrow and Wright, for defendant in error.

I. The demurrer was properly sustained. There is no prayer in the petition to set aside the sale of the property previously purchased by Lumley of Robinson.

II. There is no equity in the petition. If Lumley, as he insists, had no interest subject to sale on execution, then Robinson's purchase at the sheriff's sale was a nugatory act. He acquired nothing by that purchase, nor was his undoubted right to buy...