Minto v. Minto

• Decision Date: 07 March 1949
• Parties: In Re: Robert Keet Minto, v. Dorothy H. Minto, John T. Pierpont, Sheriff of Greene County, Movant-Respondent, v. Cecil Stumph, Appellant
• Court: Missouri Court of Appeals

217 S.W.2d 729

240 Mo.App. 107

In Re: Robert Keet Minto, v. Dorothy H. Minto, John T. Pierpont, Sheriff of Greene County, Movant-Respondent, v. Cecil Stumph, Appellant

Court of Appeals of Missouri, Springfield District

March 7, 1949

Appeal from Circuit Court of Greene County; Hon. Warren L. White Judge.

Affirmed.

Lincoln Lincoln, Whitlock & Haseltine, of Springfield, for appellant.

The Court erroneously failed to relieve appellant from his bid by reason of mutual mistake of fact and unfairness. McLean vs. Martin (1870) 45 Mo. 393; Wilchinsky vs Cavender, (1880) 72 Mo. 192; Heath vs. Daggett, (1855) 21 Mo. 69; Hall vs. Giesing (1914) 178 Mo.App. 233, 165 S.W. 1181; McNamee vs. Cole, (1908) 134 Mo.App. 266, 114 S.W. 46. The Court erroneously failed to relieve appellant from his bid by reason of total failure of consideration. 33 Corpus Juris Secundum, Title: Executions, Secs. 307-308, pp. 600-601; Cashion vs. Faina (1870) 47 Mo. 133; Schwartz vs. Dryden (1857) 25 Mo. 572; Stevens vs. Ells, (1877) 65 Mo. 456; McNamee vs. Cole, (1908) 134 Mo.App. 266, 114 S.W. 46; Talley vs. Schlatity, (1903) 180 Mo. 231, 79 S.W. 162; Chilton vs. Harris (1914) 179 Mo.App. 267, 166 S.W. 1084; Bouvier's Law Dictionary 1946 Ed., p. 156. The Court erroneously held that the sheriff had authority to sell a nonexistent interest in real estate. Sec. 1336 R. S. Mo. 1939. Sandrowski vs. Sandrowski, (1936) 230 Mo.App. 1056, 93 S.W.2d 81; State ex rel. Brubaker vs. Tucker, (1921) 286 Mo. 466, 299 S.W. 163; First National Bank of Stronghurst vs. Kirby, (1916) 269 Mo. 285, 190 S.W. 597. The Court erroneously held that appellant, Cecil Stumph, failed to prove a total failure of consideration in the sheriff's sale. Adams vs. Adams, 348 Mo. 1041, 156 S.W.2d 610; H. B. McCray Lumber Co. vs. Standard Const. Co., (1926 Mo. App.) 285 S.W. 104; Schwind vs. O'Halloran, (1940) 346 Mo. 486, 142 S.W.2d 55; Transamerican Freight Lines vs. Marchrome Art Marble Co., (1941 St. L. App) 150 S.W.2d 547, 551, 236 Mo.App. 272.

Joseph N. Brown, Arch A. Johnson, Sam M. Wear, William A. Wear, and Wear & Wear for respondent.

The rule of caveat emptor prevails at an execution sale as between the sheriff and the bidder, absent any fraud on the part of the sheriff. Prichard vs. Peoples Bank 198 Mo.App. 597; 200 S.W. 665, l. c. 666; Cashion vs. Faina 47 Mo. 133; Schwartz vs. Dryden 25 Mo. 572; Whaples vs. U.S. 110 U.S. 630; 28 L.Ed. 272; Touge vs. Radwell, 156 A. 814; Kreps vs. Webster, 277 P. 471; Stephens vs. Ells, 65 Mo. 456; McNamee vs. Cole, 134 Mo.App. 266; Talley vs. Schlatity, 180 Mo. 231; Chilton vs. Harris, 179 Mo.App. 267; Brightwell vs. Bank, 109 F.2d 271; 50 Corpus Juris Secundum 667; 33 Corpus Juris Secundum 468. Although the appellate court may review a case when tried in a lower court without a jury, as in a suit of an equitable nature, yet: The judgment of the trial court shall not be set aside unless clearly erroneous. Code of Civil Procedure, Sec. 114, Laws of Missouri 1493, Page 353 ff; 1 Carr Civil Procedure 877, Sec. 813; A. J. Meyer & Co. vs. Schulte, 189 S.W.2d 183, L. C. 188; Johnson vs. Frank, 354 Mo. 767 L. C. 775; 191 S.W.2d 618 l. c. 621. Due regard shall be given to the ability of the trial court to judge of the credibility of the witnesses. Code of Civil Procedure, 114 Laws of Mo. 1943, Page 353 ff; 1 Carr Civil Procedure 877 Sec. 813; Wagner vs. Mederacke, 195 S.W.2d 108, L. C. 114; Dye vs. School District, 355 Mo. 231, L. C. 243; 195 S.W. 2d, 874 L. C. 881.

Blair, J. Vandeventer, P. J., and McDowell, J., concur.

OPINION

This is a proceeding under Section 1367 and Section 1368, Revised Statutes of Missouri, for 1939.

On May 23, 1945, plaintiff, in the case of Minto vs. Minto, 207 S.W.2d 843, subsequently decided in favor of the bank, defendant, filed a motion in the trial court for an order on the Sheriff of Greene County, Missouri, for the sale of the interest of Dorothy H. Walter, previously Dorothy H. Minto, in the property later described. The facts are very clearly stated by the trial judge, and we reproduce his finding of facts, without change, as follows:

"Finding of Facts.

"January 18, 1947, Plaintiff Robert K. Minto recovered a judgment against Dorothy Minto in the amount of $ 4002.67. March 29 1947, a general execution was issued on said judgment and delivered to the Sheriff. On April 12, 1947, the Sheriff levied upon all the right, title and interest of Dorothy Minto in and to the following described real estate, to-wit:

"'That part of the SW 1/4 of the SE 1/4 of Sec. 4, Twp. 29, Range 21, lying south and east of Pearson Creek, containing 1 1/2 acres.'

"Thereafter, the Sheriff caused a notice of sale to be duly published for twenty-one days, giving notice that on May 20, 1947, he would sell for cash all the right, title and interest of Dorothy Minto in and to the above described real estate. On May 20th, at 2:00 P. M., the usual time of holding Sheriff's sales, and at the place named in the notice, J. Will Webb, a deputy sheriff, conducted the sale in the absence of the Sheriff. After announcing that he was about to hold a sale, the published notice was read by Lottie Epperson, another deputy sheriff and clerk in the Sheriff's office. After the reading of the notice, Webb said he was selling all the right, title and interest of Dorothy Minto in and to the said land, and asked for bids. The first bid was $ 100.00, made by Arch A. Johnson, an attorney for the plaintiff, R. K. Minto. Other bids were made by respondent herein, Cecil Stumph, and others, until the sum of $ 1125.00 was reached. That was Stumph's bid, and being the last and best bid, the land was struck off and sold to Stumph. Stumph thereupon gave the Sheriff his check for $ 1125.00. There were no representations made at the sale by anyone as to the nature of Dorothy Minto's interest in the land. The sale was concluded and the check given about 2:15 P. M. The bank closed at 3:00 P. M. The Sheriff did not present the check for payment till the next morning, by which time Stumph had stopped payment, and has since refused to pay it.

"Thereafter, the Sheriff advertised a second sale, which was duly held, at which sale all the right, title and interest of Dorothy Minto in and to said land was sold to another party for $ 50.00. Thereupon the Sheriff filed his motion for summary judgment against Stumph for $ 1075.00, the difference between his bid and the amount realized on the resale, under Secs. 1367 and 1368, R. S. 1939.

"Respondent Stumph makes no contention of any irregularity or invalidity in the proceedings above recited, but he seeks to justify his refusal to pay his bid on the sole ground that Dorothy Minto, at the time of the sale, had no right, title or interest in said land; that the Sheriff had nothing to sell and nothing was sold or bought, and hence there was no consideration or a total failure of consideration for his bid, and that he made his bid in the mistaken belief that the title was in Dorothy Minto. On this question the facts are:

"On April 5, 1945, the land in question belonged to Claud and Sylvia Hawley. On that day they made a deed whereby they conveyed it to one Jack Walter, which deed has never been recorded. On that date, April 5th Dorothy Minto was the wife of Plaintiff R. K. Minto, and Jack Walter had a wife living in Memphis, Tenn. Dorothy Minto had a divorce suit pending in which she obtained a decree of divorce the next day, April 6th. Walter was also divorced at some time thereafter. Dorothy Minto and Jack Walter were at the time, April 5th planning to marry when their respective divorces were granted.

"The Hawley place, the 1 1/2 acres above described, was listed for sale with a real estate broker named Johnson. "Several days before April 5th, Johnson took Dorothy out to see the place with the idea of selling it to her. She said she liked it, and at a later time she took Walter out to see it. He also liked it. As a result they decided to buy it. Hawley furnished an abstract of title which was turned over to Wm. A. Moon, an attorney, for examination. Moon was at the time attorney and legal adviser to both Dorothy and Walter.

"On April 5th, Moon having approved the title, the Hawleys went to his office to execute a deed, which they did. Dorothy was there, but Walter was not. The deed was drawn by Moon, and Jack Walter was named as grantee. Moon paid the Hawleys in cash $ 3400.00 ($ 100.00 having been previously paid). Moon testified that the entire purchase price, $ 3500.00 was paid by Jack Walter, that Walter had previously paid $ 100.00 to bind the bargain, and on April 5th gave him (Moon) $ 3400.00 to pay the balance. In explanation of why the deed was not recorded, Moon says that Walter then had a suit pending in Memphis with his wife and did not want the records to show that he had any property. Moon also says that a week or ten days previously Walter had showed him some checks he had totaling more than $ 5000.00. Another fact of some significance is that on April 4th, the day before the transaction with the Hawleys, Dorothy Minto, using a power of attorney previously given her by her husband R. K. Minto, had withdrawn $ 4002.67 from her husband's bank account. Moon says that Dorothy turned this money over to him to keep for her some two weeks later and that he returned it to her in August.

"Soon after April 5th, when Hawleys' deed was made, Dorothy moved into the place and lived there for two months or more. About July 1, 1945, Walter, having been divorced from his wife in Memphis, was married to Dorothy Minto.

"Now coming back to May 20, 1947, the day of the execution sale Stumph went to the Sheriff's office to get some information about the land and the sale, said he had looked at the property and liked it, and asked...