McNamee v. Cole

• Decision Date: 17 November 1908
• Citation: 134 Mo. App. 266,114 S.W. 46
• Parties: McNAMEE v. COLE.
• Court: Missouri Court of Appeals

114 S.W. 46

134 Mo. App. 266

McNAMEE v. COLE.

St. Louis Court of Appeals. Missouri.

November 17, 1908.

Rehearing Denied December 1, 1908.

1. JURY (§ 13)—RIGHT TO TRIAL BY JURY—PARTITION SALE — LIABILITIES OF PURCHASER.

Rev. St. 1835, pp. 258, 259, §§ 40, 41 (Rev. St. 1899, p. 799, §§ 3202, 3203 [Ann. St. 1906, p. 1819]), provide that, if a bidder at an execution sale refuses to pay the amount of his bid for property struck off to him, the officer making the sale may again sell to the highest bidder as though no previous sale had occurred, and, if a loss results, the amount of such loss may be recovered on motion before a court or justice in a summary way. Wag. St. p. 970, c. 104, art. 2, § 31 (Rev. St. 1899, § 4407 [Ann. St. 1906, p. 2421]), provides that partition sales shall be governed by the same regulations as

execution sales. Held that, where a purchaser at a partition sale refused to take the property and pay for it, and the officer making the sale resells the property at a loss, the loss may be recovered from the purchaser at the first sale by summary proceedings, and without a trial by jury.

2. PARTITION (§ 104)—SALE—LIABILITIES OF PURCHASER.

Partition sales under the statute stand on the same footing as execution sales, and the purchaser buys at his peril, and must beware of his title, and cannot be excused from answering in damages for refusing to complete the purchase because the property was encumbered by easements, or because at the second sale the officer making it expressly notified the bidders of the easements.

3. PARTITION (§ 104)—SALE—LIABILITIES OF PURCHASER.

Evidence in an action against a purchaser at a partition sale for loss sustained by his refusal to complete the purchase necessitating a second sale at a lower price held to justify the court in refusing a peremptory declaration in defendant's favor on the ground that defendant was deceived by the officer making the sale as to the title of the property.

4. PARTITION (§ 104)—SALE—LIABILITIES OF PURCHASER.

Where property was sold at a partition sale and the purchaser refused to complete the purchase, and it was resold under the same description, and the certificate of title was presented at the first sale and bystanders were notified that they could inspect it and ask questions about the title, and the property was sold for a smaller sum than at the first sale, the measure of damages will be the difference between the prices, under Rev. St. 1899, §§ 3202, 3203 (Ann. St. 1906, p. 1819), providing for recovery of the loss occasioned by a second sale of property on execution, although the officer in making the second sale announced that the property was subject to certain easements about which nothing was said at the first sale.

5. PARTITION (§ 104)—SALE—LIABILITIES OF PURCHASER.

A purchaser at a partition sale refused to complete his purchase and the property was resold at a loss, and the commissioner making the sale, by motion in the circuit court, sought to require the first purchaser to pay the commissioner such loss. Held, that persons interested in the property and its proceeds, and who are parties to the partition suit, had no power to order a dismissal of any portion of the proceeding, though after the money is paid they may release defendant from liability to them and have their shares turned over to him.

6. PARTITION (§ 104)—SALES—LIABILITIES OF PURCHASER.

Rev. St. 1899, §§ 3202, 3203 (Ann. St. 1906, p. 1819), provide for a second sale, of property sold on execution where the purchaser refuses to complete the sale, and directs that the second sale shall be held as though no previous one had been made, and the loss, if any, recovered from the first purchaser, and under Wag. St. p. 970, c. 104, art. 2, § 31 (Rev. St. 1899, § 4407 [Ann. St. 1906, p. 2421]), this proceeding applies to partition sales. Held, that the commissioner making a second sale of property sold for partition purposes is not required to give notice that he will sell on account of the first purchaser, as the second sale is to be held as though no previous one had been made.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Hugh W. McNamee against John J. Cole. Judgment for plaintiff, and defendant appeals. Affirmed.

R. M. Nichols, for appellant. Selden P. Spencer and E. N. Robinson, for appellee.

GOODE, J.

This appeal came here as a branch of a suit in partition. Instead of being divided in kind, the land of which partition was asked was sold pursuant to the judgment of the court by a special commissioner and the plaintiff in error, John J. Cole, bid it in for $17,025, paying the commissioner $500 on the purchase price. The property was a lot in the city of St. Louis described as in city block 135, beginning at the intersection of the south line of Clark avenue with the east line of Seventh street, and running thence east, along the south line of Clark avenue, 127 feet 6 inches, more or less, to an alley; thence south, along the west line of said alley, 48 feet 7 inches; thence west, parallel with said south line of Clark avenue, 36 feet; thence north, parallel with the said west line of said alley, 22 feet; thence west, parallel with said south line of Clark avenue, 91 feet 6 inches, to the east line of Seventh street; and thence north, along the east side of Seventh street, 26 feet 7 inches, to the place of beginning. The sale was approved without objection. Cole afterwards refused to comply with his purchase, and the property was resold by the commissioner for about $2,500 less than Cole's bid. These facts are set out by the commissioner in a petition or motion filed in the circuit court, asking that Cole be required to pay the commissioner the difference between his (Cole's) bid and what the property brought at the second sale. In answer to the motion or petition, Cole alleged, in substance, that a different piece of property of less value than the one he had bought was sold the second time—one burdened with certain easements. The evidence shows the property described had a party wall on it 1 foot thick and extending from the east side of Seventh street westwardly 91 feet 6 inches, and also a private alley three feet wide and 26 feet 7 inches long, extending from the north line of Clark avenue at a point 91 feet 6 inches south of Seventh street. At the first sale nothing was said about either the party wall, the alley, or the taxes for 1906; but the commissioner informed those present a certificate of title was at hand, and could be read by any one who wished. The certificate showed the existence of the party wall, the alley, and the taxes for the year 1906. Cole denies the auctioneer said at the first sale he had a certificate of title which would be shown to any one who desired to see it, and says nothing was said by the auctioneer about the title, except that the property was sold subject to certain interests and liens, other than those set up in Cole's answer, and that these interests and liens would be taken up out of the purchase money. Some bystander at the second sale asked the commissioner about the title, whereupon the commissioner read the certificate to the crowd, thereby notifying them of the easements and the unpaid taxes. After the first sale Cole arranged with the Misses Weil, who had owned interests in the property, to turn over his bid to them, and let them take his place as purchaser of the lot. They failed to complete the purchase, and afterwards, when the commissioner called on him to do so, he procured a certificate of title for himself and discovered the incumbrances. Inasmuch as these incumbrances or easements were announced to the bystanders at the second sale, Cole insists a different parcel of ground was then sold which brought less than the one first sold. The published notices of the two sales described the lot according to the description first aforesaid, not mentioning the easements. There is evidence to show Cole declined to complete the deal after the Weil sisters refused to do so, because it was inconvenient for him to raise the money, and also because of a doubt as to the value of the property in comparison with his bid; but he insists his only reason was the existence of the easements and liens. The court gave judgment against Cole for $2,500, being the difference between the amounts of the bids at the two sales, less the $500 Cole had paid on his bid, and he appealed.

The court refused to declare, on the evidence, the finding should be for defendant, either against plaintiff's demand or on his counterclaim for five hundred dollars he had paid on his bid; also refused to declare if it found the property in question was sold by the commissioner January 3, 1907, to defendant for $17,025, and defendant refused to complete the purchase because the title was incumbered by a private alley and the party wall agreement, and further found there was on May 20, 1907, a second sale by the commissioner for $14,500, and that said second sale was made subject to said incumbrances, the verdict should be for defendant, and his damages assessed at the sum already paid by him. A declaration was given for defendant of this effect: If the property was sold January 3, 1907, at public auction to defendant for $17,025, and before the sale the commissioner represented to defendant the title was perfect and the property had the area stated in the description contained in the notice of sale and set out above, the verdict must be for defendant for what he had paid on his bid. Different inferences of fact might be drawn regarding the truth of the several issues between the parties, and, therefore, our province is to review the rulings on requests for declarations of law.

1. We must notice first the error assigned, for refusing to grant defendant a trial by jury. In Hensley v. Baker, 10 Mo. 157, Hensley, who had bid for a slave sold under execution by Baker, a sheriff, refused to pay the amount of his bid...