McNamee v. Cole
| Decision Date | 17 November 1908 |
| Citation | 114 S.W. 46,134 Mo.App. 266 |
| Parties | McNAMEE, Defendant in Error, v. COLE, Plaintiff in Error |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.
Judgment affirmed.
R. M Nichols for plaintiff in error.
(1) The testimony showed that there was either an omission, by the commissioner and the auctioneer, to state at the public sale the actual condition of the title, either through ignorance or forgetfulness, amounting to a mistake, or a suppression of the real facts; in either of which case a court will relieve a purchaser at a partition sale, it being shown, as in this case, that the purchaser would acquire an imperfect title or a smaller area than he did purchase. McKee v. Logan, 82 Mo. 524; Heim v. Schwoerer, 100 N.Y.S. 808, 187 N.Y. 543; Smyth v. McCool, 29 N.Y. 297; Breckenridge v. Nally, 59 N.Y. 39; Jordan v Billon, 77 N.Y. 519; Cronter v. Cronter, 133 N.Y. 55, 30 N.E. 726; Morris v. Howatz, 2 Paige 586, 22 Am. Dec. 661; Veeder v. Fonda, 2 Paige Ch. 940; Seaman v. Hicks, 8 Paige Ch. 655; Dunscombe v. Holst, 13 F. 11; Pope v. Erdman, 17 S.W. 145; Cowper v. Weaver, 29 L.R.A. 1; 24 Cyc. of L. & P., p. 59. (2) A court of equity will not compel a purchaser to take an imperfect title, or a title which with the incumbrance of an alley and partition wall, was shown to be worth from $ 3,000 to $ 5,000 less than Mr. Cole bid for it. Toole v. Toole, 112 N.Y. 333; Smith v. Britton, 3 Iredell Eq. 347, 42 Am. Dec. 175; Wanser v. De Nyse, 188 N.Y. 378, 80 N.E. 1088; Ramsey v. Hersker, 153 Pa. 480, 26 A. 433; Campman v. Nicewaner, 60 Neb. 212; Shields v. Allen, 77 N. Car. 375; Edeney v. Edeney, 80 N. Car. 81; Preston v. Fryer, 38 Md. 221; McCafery v. Little, 20 App. D. C. 116. (3) The resale of the property May 20, 1907, subject to the alley, the party wall agreement and the taxes for 1906, was on terms different from the sale to the defendant Cole on January 3, 1907, and upon terms less advantageous. Certainly the property would not bring as much if sold subject to the party wall agreement, the three foot alley and the taxes for 1906, as if sold free and clear of these incumbrances. The measure of damages is destroyed. The difference between the price Mr. Cole bid and the second purchaser bid, does not furnish the measure of damages because the basis was different. Pepper v. Deakyne, 212 Pa. 181, 61 A. 805; Banes v. Gordon, 9 Pa. 426; Freeman v. Husband, 77 Pa. 389; Hare v. Bedel, 98 Pa. 485; West v. Derrick, 100 Pa. 509; Riggs v. Purcell, 74 N.Y. 370; Roy v. Adams, 59 N.Y.S. 1047; Hendricks v. Davis, 27 Ga. 167, 73 Am. Dec. 726; Shinn v. Roberts, 20 N.J. L. 435, 43 Am. Dec. 630; Mitchner v. Lloyd, 16 N.J. E. 38; Hammond v. Gilleaud, 111 Cal. 206, 43 P. 607; Smith v. Roberts, 106 Ga. 106; Howison v. Bakley, 118 Ala. 215; 17 Ency. of Law (2 Ed.), p. 1027; Jones on Mortgages (4th Ed.), sec. 1643. (4) The court should direct the dismissal of this proceeding, so far as it affects the interests of Else, Rosa and Clara Weil, upon the ground that they are three of the substantial plaintiffs in this proceeding, and a plaintiff always has the right to dismiss as to himself. 6 Enc. P. and P., p. 853; R. S. 1899, sec. 639; Kehoe v. Phillipe, 42 Mo.App. 293.
Selden P. Spencer and E. N. Robinson for defendant in error.
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 five hundred dollars 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 first 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 one 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 five hundred dollars 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 to 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 on the ground the slave was unsound; whereupon the sheriff again sold for a less sum and proceeded on the statute by motion against Hensley for the difference between the two prices. The statutes provided then, as they do now if a bidder at an execution sale refused to pay the amount of his bid for property struck off to him, the officer making the sale might again sell to the highest bidder as though no previous sale had occurred, and if a loss was occasioned, recover the amount of it on motion before a court or justice in a summary way. [R. S. 1835, p. 258, secs. 40, 41 (Mo. Ann. St. 1899, secs. 3202, 3203).] Hensley demanded a jury to try the motion and having been denied one, he assigned error for the refusal on appeal. The Supreme Court held that, as the statute directed such proceedings to...
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