Meir v. Zelle

• Decision Date: 31 January 1861
• Citation: 31 Mo. 331
• Parties: MEIR et al., Plaintiffs in Error, v. ZELLE, Defendant in Error.
• Court: Missouri Supreme Court

31 Mo. 331

MEIR et al., Plaintiffs in Error,

v.ZELLE, Defendant in Error.

Supreme Court of Missouri.

January Term, 1861.

1. Where a sheriff's sale under execution is made by him in the usual way and at the usual place, the sale will not be set aside because the sheriff did not give special notice to the plaintiffs' attorney of such sale, unless it appears that the sheriff promised to give such special notice and failed so to do.

2. Mere inadequacy of price is not sufficient ground for setting aside such sale where it has been conducted fairly and properly in all respects.

Error to Osage Circuit Court.

White, for plaintiffs in error.

I. This sale can not be permitted to stand, it being a well settled question that a sale of separate parcels of land altogether is always sufficient cause for setting it aside; and the plaintiff in the execution has a right to make the application. (13 How., N. Y., 555; 7 Mo. 634; Evans v. Ashley, 8 Mo. 177; Rector v. Hart, 8 Mo. 448; 6 Wend. 522; 13 Wend. 24, 30; 24 Wend. 143; 9 Paige, 339, 100; 10 Paige, 243, 487; 3 John. Ch. R. 424.)

II. The price being grossly inadequate, the defendant in error can not complain if the courts that pass upon his rights should narrowly scan the proceedings. (23 Mo. 13, 14, 21.)

Muir & Draffin, for defendant in error.

I. The court below decided the motion correctly, and no act was done by the purchaser to prevent the property from selling for a higher price. Public policy indicates that such sales ought to be upheld and sustained. Inadequacy of price is not a sufficient ground for setting aside a sheriff's sale of real estate. (Hammond v. Scott, 12 Mo. 9.)

EWING, Judge, delivered the opinion of the court.

This was a proceeding by execution creditors to set aside the sheriff's sale of real estate. The causes alleged in the motion are, the failure of the sheriff to notify the plaintiffs' attorney of the time or hour of the day at which the sale would be made, and gross inadequacy of price.

The plaintiffs' counsel in his brief also makes the point that distinct parcels of land were sold together, but the motion is entirely silent as to this, and the fact nowhere appears in the bill of exceptions proper, nor indeed any where except perhaps inferentially, if at all, in the officer's return on the execution. But however this may be, if the two parcels were in fact sold together, for aught that appears it may have been done by the request of the defendant in the execution, in which case it was the duty of the officer to sell accordingly. (R. C. § 33, p. 744.) The point, however, was not made in the motion, nor otherwise brought to the attention of the...