Mason v. Wilks

• Decision Date: 09 December 1926
• Docket Number: No. 15489.,15489.
• Citation: 288 S.W. 936
• Parties: MASON v. WILKS.
• Court: Missouri Court of Appeals

288 S.W. 936

MASON v. WILKS.

No. 15489.

Kansas City Court of Appeals. Missouri.

December 9, 1926.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

"Not to be officially published."

Action by John T. Mason against A. S. Wilks. Judgment for plaintiff, and defendant appeals. Affirmed.

John D. Taylor, of Keytesville, for appellant.

Roy McKittrick, of Salisbury, and A. It Hammett, of San Antonio, Tex., for respondent.

BLAND, J.

This is a suit against the sheriff of Chariton county, for damages, based upon an excessive levy made upon plaintiff's real estate and the failure of the sheriff to apprise plaintiff of his exemption rights. There was a judgment in favor of plaintiff in the sum of $300 actual damages, and defendant has appealed.

The facts show that the execution was issued upon a judgment in the sum of $75, of which plaintiff had paid all except $6.85. Defendant on November 13, 1923, wrote plaintiff, who caved at Mexico, Mo., that he had received the execution, and that "the cost in this case" amounted to $10.45; that if he did not receive plaintiff's check at once, he would levy upon plaintiff's farm situated in Chariton county. Plaintiff made some reply to this letter, but did not pay the judgment or costs, and defendant levied on plaintiff's farm, consisting of 79 acres of the value of $10,000, and sold the same on February 8, 1924, to one Dameron for $25, and executed and delivered to Dameron a deed conveying to him the land. Defendant did not apprise plaintiff of his statutory exemptions, though he knew where plaintiff could be found. Plaintiff did not learn that the land was sold until two months after the sale, which was after Dameron had recorded the deed. Plaintiff, upon being advised that the land had been sold, began negotiations with Dameron to obtain a deed from him and finally succeeded in procuring one from him conveying the land back to plaintiff upon the payment of $200 by plaintiff. Plaintiff testified that he expended $150 for railroad fare, hotel expenses, and the like while negotiating with Dameron for a reconveyance of the property.

The petition recites the rendition of the judgment and that all or it had been paid except $6.85; the issuance and levy of the execution, the sale of the farm en masse, consisting of 79 acres, to Dameron for $25, and the making of the deed by the defendant to Dameron; that:

"* * * Under the provisions of section 1637, R.. S. of Missouri for 1919, when the defendant received the execution aforesaid and before he levied the same, it was his duty to divide said real estate, if said real estate or land was susceptible to division, and to have sold only so much thereof as would have been sufficient to satisfy said execution and costs of executing same, unless the defendant in said execution, plaintiff herein, desired the whole of said tract of land to be sold together.

"Plaintiff states that the aforesaid real estate was susceptible of division and that the said A. S. Wilks should have set off and sold Only such part thereof as was necessary to satisfy said execution and the costs of executing same. That plaintiff did not request the whole of said tract of land to be sold, and, in fact and truth, did not learn of said levy on said land, as aforesaid, until after the Sheriff A. S. Wilks had levied upon, advertised, and sold the same, as aforesaid, and had made, executed, and delivered the sheriff's deed aforesaid, and not until after the same had been placed on record in the office of the recorder of deeds of Chariton county, Mo.

"That the said sheriff never notified the said John T. Mason of his statutory exemption rights; namely, the right to claim as exempt from the levy of this execution $300 worth of said land as the head of a family, although, he knew all the while that said Mason was the head of a family and that he resided in Mexico, Audrain county, Mo., and never notified plaintiff that the aforesaid levy had been made.

"That at the time said land was sold by the sheriff, as aforesaid, the same was reasonably worth the sum of $12,000, and that a small part thereof; namely, one acre, sold separately, would have brought more money than was necessary to satisfy said execution and the cost of executing same."

The petition further alleges that the making of the sheriff's deed cast a cloud upon the title of the real estate in question; that after receiving the deed Dameron claimed to be the owner of the property, and demanded the possession thereof; that, in order to remove the cloud from the title, plaintiff was compelled to make several trips from Mexico, Mo., to Chariton county, in an effort to acquire the title from Dameron that the latter had secured under the sheriff's deed; that plaintiff was required to employ counsel and was compelled to pay Dameron the sum of $200 in order to obtain a deed from him relinquishing the title that he had acquired under the sheriff's deed, and that since paying Dameron the $200 plaintiff had been compelled to employ counsel to prosecute this suit. The prayer asked actual damages in the sum of $1,000 and punitive damages in a like sum.

Defendant insists that the petition fails to charge any misconduct on the part of the defendant in reference to his failure to divide the property after the levy was made. The statute (section 1637, R. S. 1919) reads as follows:

"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."

Defendant admits that the land could have been divided, but claims that the statute provides for a division after the levy, while the petition charges that he failed to make the division before the levy. After verdict, the petition must be liberally construed, and, if it states any cause of action whatever, however defectively set forth, it must be upheld. While the petition alleges that it was the duty of the sheriff, before he made the levy, to divide the real estate, this was a mere conclusion of law on the part of the pleader and may be disregarded as surplusage. Reading the petition as a whole, it says that the property was neither divided before nor after the levy was made, for it alleges that it was sold in en masse.

It is also claimed that section 1637, R. S. 1919, is directory and not mandatory, and, this being true, plaintiff's remedy was by application to have the sale set aside; that the failure of the defendant to divide the tract did not give rise to any cause of action in plaintiff's favor for damages. In this connection, defendant says:

"Being a discretionary matter and being only an irregularity, the sheriff, being a public officer, cannot be held liable in damages. Abuse of discretionary power by a public officer is never grounds for an action for damages unless it can be charged and shown to be willful, deliberate, and malicious, and, to make the failure to divide the land in this case the ground for an action for damages, the petition should necessarily have coupled with the charge of failing to subdivide the land the charge that such failure was willful, deliberate, and malicious. Such charge should have been strong enough and broad enough in its language to have come within the provisions of section 3193 regarding oppression in office."

In support of his contention, defendant relies largely upon the case of Shelton v. Franklin, 224 Mo. 342, 123 S. W. 1084, 135 Am. St. Rep. 537. That was an equitable proceeding to try the title to the real estate involved. The land in question was sold for taxes; it was claimed that the tax sale was void because the sheriff disregarded his duty to divide the land before selling the same. The court in that case held that the statute in controversy was directory and that a violation of the same would...