Mead v. Matson

• Decision Date: 31 January 1846
• Citation: 9 Mo. 782
• Parties: MEAD AND OTHERS v. MATSON AND OTHERS.
• Court: Missouri Supreme Court

9 Mo. 782

MEAD AND OTHERS

v.MATSON AND OTHERS.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO LIVINGSTON CIRCUIT COURT.

TODD & ANGNEY, for Plaintiff. 1. The sale was made under an irregular process, because it did not follow the judgment by setting forth fully the names of the defendants therein. Bingham on Executions, 178-186; 6 Term. R. 525, Tidd's Pr. 998. An irregular fieri facia is void, and of course all acts done under it. 1 Cowen's R. 711; 3 Marshall's R. 618. 2. The sale was void, because the whole tract was sold in a mass, and also because more was unnecessarily sold than sufficient to make the money commanded by the writ; and by such sale much more money in fact was made than commanded by the writ. Rev. Code, p. 257, § 26; 7 Mo. R. 346; Morehead & Mason's Digest of Kentucky Statutes, 1834, p. 625; 2 Bibb, 401; 3 Marshall, 618; 6 Monroe, 27; 2 J. J. Marshall's R. 36, 68; also 4 Cranch, 403; 6 Johns. Ch. R. 411; 18 Johns. R. 355; 8 Johns. R. 333; 6 Wendell, 524; 3 Dana, 235; 1 Binney, 61; 8 Mo. R. 460. 3. This proceeding to set the sale aside was not made too late. 1 Bibb, 155; 2 Bibb, 401. There have been no laches, nor is the situation of the parties changed, and in case of irregularities the general rule is, that a party is in time to take advantage of it, if he apply at the first opportunity thereafter, which in this case was the April term, at which the plaintiffs in error did apply.

STRINGFELLOW, for Defendants. It is insisted for defendants in error, 1. That the petition itself is defective in not showing whether a deed had been made to the purchaser (Matson). If a deed had been made, it is insisted that upon a mere motion the deed could not be canceled. The party must resort to equity. 2. That petitioners having offered no evidence to sustain their petition, the Circuit Court properly overruled their motion 3. It is insisted, that there should have been, not only the execution, but evidence to show that the land was susceptible of division, and if divided could have been sold for more than sufficient to satisfy the execution. 4. There being no evidence before the court, either of the amount of the execution. the manner of sale, or the value of the land, the court could not take the petition as evidence of these matters, and hence should have overruled the motion. 5. It is submit ted that a motion to set aside a sale under execution, cannot be made after the return term of the execution; at all events, not after deed made and the term passed, as for aught that appears in the petition, was the case in this instance.

NAPTON, J.

On the 19th day of April, 1843, Edward Mead, George Mead and others, filed their petition in the Circuit Court of Livingston county, to set aside a sale made by the sheriff of that county. The petition set forth the following facts: that in August, 1840, Roderick Matson recovered against the petitioners the sum of seven dollars costs, in a certain cause which had been instituted by petitioners against Matson, in the said Circuit Court of Livingston; that on the 16th September, 1842, an execution issued on the same; that by virtue of said execution the sheriff of Livingston county, on the 16th November, 1842, levied on the northwest quarter of section No. 20, township 57, range 24, situate in said county of...