McLean v. Martin

• Decision Date: 28 February 1870
• Citation: 45 Mo. 393
• Parties: FINNESSE E. MCLEAN, Plaintiff in Error, v. JAS. H. MARTIN, Defendant in Error.
• Court: Missouri Supreme Court

45 Mo. 393

FINNESSE E. MCLEAN, Plaintiff in Error,

v.JAS. H. MARTIN, Defendant in Error.

Supreme Court of Missouri.

February Term, 1870.

Error to Fifth District Court.

H. S. Kelley and J. J. Davis, for plaintiff in error.

One who purchases land at a sheriff's sale, supposing it to be that of the judgment debtor, pays the money, takes possession, and makes lasting improvements, and is afterwards dispossessed by the debtor, may recover back the amount of the purchase money, even when no fraud at the sale is imputed to the debtor. The doctrine of caveat emptor does not apply to the case at bar. (Valle's Heirs v. Fleming's Heirs, 29 Mo. 152; Heath v. Daggett, 21 Mo. 69; Magwire v. Marks, 28 Mo. 193.) The doctrine we contend for, and which we maintain has been expressly adopted and approved in this State by the cases cited, is recognized as sound equity law in several, if not all, of the States of the Union. (Muir v. Craig, 3 Blackf. 283; Bunts v. Cole, 7 Blackst. 268; Dunn v. Frazier, 8 Blackf. 432; Preston v. Harrison, 9 Ind. 1; Pennington v. Clifton, 10 Ind. 172; Richmond v. Marston, 15 Ind. 137; Seller v. Lingerman, 24 Ind. 264, 267; Julian v. Beal, 26 Ind. 220; Hawkins v. Miller, id. 173; 4 Scam. 489; 24 Ill. 281, 285; Gwin on Sheriffs, 357, 382; Hudgins v. Hudgins' Ex'r, 6 Grat. 320; Howard v. North, 5 Texas, 315; 21 Texas, 287, 772; McGee v. Ellis, 4 Littell, 244; McLaughlin's Adm'r v. Daniel, 8 Dana, 182; Geoghegan v. Ditto, 2 Metc., Ky., 324, 433; Bentley v. Long, 1 Strob. Eq. 43; Dufour v. Camfranc, 11 Martin, 615; Haynes v. Courtney, 15 La. Ann. 630; Fenno v. Coulter, 14 Ark. 114; 21 Conn. 451, 460; Reed et al. v. Crosthwait, 6 Iowa, 219; Ritter v. Henshaw, 7 Iowa, 97.) Plaintiff is entitled to recover for improvements. (Gen. Stat. 1865, p. 609, §§ 20-1; 35 Mo. 251; Bright v. Boyd, 2 Sto. 605; 29 Mo. 152; Sedgw. on Dam. 139; Sto. Eq. Jur., Redf. ed., §§ 799, 1237-8, notes.)Woodson, Heren & Rea, for defendant in error.

The rule of caveat emptor applies in our State to sheriffs' sales of real estate under execution, and the purchaser buys at his peril. (10 Mo. 157; 29 Mo. 152; 25 Mo. 572; 14 Mo. 153; 37 Mo. 363.)

WAGNER, Judge, delivered the opinion of the court.

In this case a demurrer to the petition was sustained by the Circuit Court, and final judgment rendered for the defendant. Exception was taken, and the case appealed to the District Court, where the judgment was affirmed. The case is now here by writ of error. The petition sets forth the following facts, namely: that on the 8th day of October, 1863, Ellison Townsend, as public administrator, having in charge the estate of Samuel Elliott, deceased, recovered a judgment in the Andrew County Circuit Court against the defendant for the sum of $1,636.39; that an execution was duly issued on said judgment, and by the sheriff levied on “one hundred and five acres, off the west side of the northeast quarter of section twenty-five, township sixty, range thirty-six,” the sheriff supposing and believing that he was levying upon the land owned by the defendant; that at the sheriff's sale of said land, on the 6th day of April, 1864, the plaintiff, believing that the land belonged to the defendant, purchased the same for the sum of $850, paid the purchase money to the sheriff, and received from him a deed for the land, and the purchase money was applied to the extinguishment of the judgment against the defendant; that the defendant had no title to, or interest whatever in, the land sold by the sheriff and purchased by the plaintiff, but did own, have title to, and, at the time, was in possession of, the west part of the northwest quarter of section thirty-five, township sixty, range thirty-six, one hundred and five acres, etc.; that the sheriff intended, supposed, and believed, at the time of making the levy and sale, that he was selling, and the plaintiff supposed and believed he was buying, the last-described tract of land which the defendant actually owned and possessed; but, being ignorant of the true description of the defendant's land, the sheriff, by mistake, misdescribed it in the levy and sale, making the first-named description instead of the latter; that afterward, by virtue of said sheriff's sale and deed, plaintiff entered upon and took possession of the last-described tract of land, which he supposed he had bought--the defendant surrendering the possession of the same to him--and, in good faith, made valuable and lasting improvements, by setting out thereon one thousand apple and other fruit trees, and otherwise repairing and improving the same to the amount of $1,000; that on the 6th day of February, 1865, he sold and conveyed the land to one Valentine Gunselman, who from thence remained in possession, making lasting and valuable improvements thereon, until the -- day of January, 1869, when the defendant, discovering the mistake in the description of the land by the sheriff, by some artifice, contrivance, or means unknown to the plaintiff, moved upon and took possession of said land, ousting and evicting the plaintiff, and Gunselman holding under him, from said premises, and still continues in possession of the same, whereby, and by reason whereof, plaintiff became liable to said Gunselman, and was compelled to and did refund to him the purchase money received for said land, and the interest thereon, and pay him for his improvements; that the defendant never had any title or right whatever to the first-described tract of land, or to any part or parcel thereof; that plaintiff did not take possession of the same, and that the sheriff's sale and deed conveyed to him no title or right thereto; wherefore the consideration for the payment of said $850 to the sheriff, on the execution and judgment aforesaid against the defendant, wholly failed. Prayer for judgment for the sum of $850 and interest thereon, and for the further sum of $1,000 for improvements made on the premises.

There was an objection raised in the demurrer that the petition was multifarious and contained a misjoinder; but neither party has paid any attention to it in this court, and the essential point in the case is that the petition does not state facts sufficient to constitute a cause of action. The argument for the defendant in error is that the plaintiff has no claim for repayment or compensation; that he purchased at his peril, and that the doctrine of caveat emptor applies in judicial sales to the fullest extent. In support of this position, reliance is exclusively placed on several cases decided in this court. I will briefly examine the cases to see whether they are absolute authority for the doctrine contended for.

The first case is Hensley v. Baker, 10 Mo. 157. That was a case where a slave was sold, who had been wounded by a cut on the leg. The slave was present at the sale, and his leg was examined. The sheriff was heard to say that nothing was the matter with the leg but the scratch of a brier. Hensley, the purchaser, was told of the hurt the slave had received, though he was at the same time informed that the wound was healed. This information was derived from one of the plaintiffs in the execution, who said he had known the slave all his lifetime. After the slave was struck off to him, he refused to pay the money and complete his purchase, and, on a re-sale, the slave brought a less sum, and an action was commenced for the difference. In his defense he set up the unsoundness of the slave; and the court held that in sales by sheriffs there is no implied or express warranty of the title or soundness of the goods sold; that the rule caveat emptor applied to such cases. But it may be said of that case that it was the sale of a personal chattel, which was present and inspected at the sale, and we know of no authority for implying a warranty under such circumstances.

In Owsley v. Smith, 14 Mo. 153, it was held that a purchaser of land, at a sale conducted under an order made in a proceeding in partition, can not avoid the payment of the purchase money upon the ground of a failure of title; that such sales are made, like those under ordinary executions, without warranty of title, and that the deed executed conveys the interest, whatever it may be, of the parties to the proceeding, and is a bar against them and all persons claiming under them. Napton, J., in his opinion says: “It was not the intention of the Legislature to make the parties to a proceeding in partition responsible for the title, where it was directed to be sold. The whole object of this statute is to enable parties who have an undivided interest in lands, to divide that interest, whatever it may be. When a sale is made, no warranty attends the sale, nor is any authorized. The sheriff is required to sell as in case of ordinary executions at law. It is well understood by all parties, purchasers and others, that the purchaser under an execution buys the title of the judgment debtor, and nothing more.” The judge then proceeds to remark that an action in respect to a partition makes ample provision for an investigation of the title; that if any person other than the petitioners or defendants claims any interest, he can be made a party and his claims adjudicated. In ...