Nelson v. Brown

• Decision Date: 31 March 1856
• Citation: 23 Mo. 13
• Parties: NELSON, Defendant in Error, v. BROWN, Plaintiff in Error.
• Court: Missouri Supreme Court

23 Mo. 13

NELSON, Defendant in Error,

v.BROWN, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1856.

1. Every court has exclusive control over its own process. Where, therefore, an execution issued out of the circuit court of St. Louis county, upon a judgment of said circuit court, and a sale of real estate was made by the sheriff, and a deed executed by him to the purchaser; held, that the defendant in the execution might, by motion in the circuit court, have such sale set aside for irregularity; he is not compelled to resort to a proceeding in the St. Louis Land Court.

2. The filing of a writ of execution, without any endorsement upon it showing the manner in which it has been executed, does not amount to a return of the writ.

3. Although, regularly, motions to set aside proceedings under an execution should be made during the return term of the writ, yet where, by authority of court, the return of the writ is made at a term subsequent to the return term, the court may, at such subsequent term, entertain a motion on the part of the defendant in the execution to set aside the proceedings under the execution for irregularity.

4. Although mere inadequacy of price will not of itself justify the setting aside of a sheriff's sale, yet where that inadequacy is gross, there must be a strict regularity in the proceedings; hence where real estate, consisting of two separate parcels of land, worth $4000, was struck off to the plaintiff in the execution, one lot for five dollars, and the other for seven dollars, or as much as the expenses of the sale, together with the clerk's fees for issuing the execution would amount to--it being the understanding between the deputy sheriff making the sale and the bidder that the amount should be increased or lessened to just the amount of the expenses of the sale including the clerk's fees as above--it not appearing that the defendant in the execution was privy to its levy or to the sale; held, that the sale and the sheriff's deed, made in pursuance thereof, should be set aside for irregularity.

Error to St. Louis Circuit Court.

The facts of this case, so far as it is necessary to set them forth, are as follows: Nelson, the defendant in error, obtained a judgment in an action of replevin, against Brown, plaintiff in error, in the St. Louis Circuit Court, for one cent damages and costs. The date of this judgment is January 20th, 1851. On the 22d day of March, 1854, an alias execution issued upon this judgment, returnable to the April term of said court. On the 24th of January, 1855, during the November term, 1854, of the Circuit Court, the sheriff returned said execution to the clerk's office of said court with his return endorsed in the following words, viz: “By authority of the court, I do hereby make the following as a correct return on the within writ: Made by sale of real estate nine dollars, which pays expenses of sale and fee of clerk, Hammond. No goods, chattels or real estate belonging to the defendant found in my county whereon to levy and make the balance of costs or any part thereof. January 24, 1855. John M. Wimer, late sheriff.”

At the same November term of said court, on the 5th day of March, 1855, Brown, defendant in the execution, made a motion to set aside the sale of his real estate made under the above execution, setting forth various reasons, of which the following only need be stated, viz: “3d. Because the sheriff of St. Louis county never, in any manner, called upon the defendant for payment of said execution, or informed said defendant that he had such an execution for collection.”“8th. Because the sale was irregular, void and oppressive, inasmuch as the property sold was worth at least $4000, and was in fact sold for nine dollars; that the property consisted of two parcels, and was sold in one mass; that it might have been divided, but was nevertheless sold in a lump.”“10th. Because the said sale of real estate was in other respects irregular, fraudulent and void and oppressive.”

This motion was supported by the affidavit of Brown, plaintiff in error. It was afterwards, at the April term, 1855, changed into a rule to show cause, & c., of which Nelson had due notice.

Nelson filed, April 28th, 1855, his written answer to the order to show cause, setting forth, 1st and 2d, that the Circuit Court has no jurisdiction of the cause, the title to real estate being involved; 3d, that there is a defect of parties, inasmuch as the sheriff is charged with wrong, and is not made a party to the rule to show cause; 4th, that the proceedings on the part of Brown are erroneous,” &c. Nelson also sets forth in his answer that his purchase at the sheriff's sale was legally and fairly made; that the sheriff acted fairly and legally in all his acts, &c.

The cause was submitted to the court at the April term, 1855, upon testimony given by the respective parties. The sheriff's deed to Nelson, dated May 6th, 1854, was given in evidence; also the circumstances attending upon the levy of the execution, and the sale thereunder; the value of the real estate sold was also shown to be $4000.

John H. Watson testified as follows: “I was a deputy sheriff under John M. Wimer, on the 3d day of May, 1854, and prior to that time. I attended to and made the sale of the land in question by virtue of the execution. I always attended to the sales when Mr. Wimer was absent. I sold the first lot described in the advertisement, and struck it off to Mr. Nelson, the plaintiff in the execution, for the sum of five dollars. I sold the second lot described in the notice, and struck it off to Mr. Nelson for the sum of seven dollars, or as much as the expenses of the sale, together with Mr. Hammond the clerk's fees for issuing the execution would amount to. Mr. Nelson bid seven dollars on the second lot and I struck it off to him at that price, but with the understanding between him and myself that the amount should be increased or lessened to just the amount of the expenses of the sale, including the clerk's fees as above. Mr. Nelson had told me, prior to the opening of the sale, that he would bid only enough to pay the expenses of the sale, and the clerk's fee for issuing the execution.”

Harvey Douglass testified as follows: “The execution in this case, upon which the sale of the real estate took place, was in my hands for collection as one of the deputies of John M. Wimer, sheriff of St. Louis county. I was a deputy sheriff under him. I think I have seen Mr. Brown once before, but am not entirely certain. I saw a man that looks like him, and I believe him to be the man, at his house in this county. I called there with the execution, and asked the man I saw if he was the defendant, Henry Brown. He said, yes. I demanded payment, and he replied that he was poor and had nothing and could not then pay it, but that he would be up in a short time and do so.” Cross-examined on the part of Brown: “It was just at evening when I was at Mr. Brown's house. At this distance of time I am not willing to swear that this [referring to defendant who was in court] is the man I saw there, but I think it is the man.”

Plaintiff in error, Henry Brown, then showed that he had a brother who resembled him so nearly that most persons would take them for the same person; that this brother was living at the house of Mr. Henry Brown, at the time the deputy sheriff Douglass called there.

The court discharged the rule and gave judgment against defendant (Brown) for costs.

The case is brought here by writ of error.

Bland & Coleman, for plaintiff in error.

I. The application which was made in the court below, to set aside the sale of the real estate of the plaintiff in error, was properly made in such court, upon principle and authority: 1st. Because such sale was made by virtue of the process of said court, issued upon the judgment of said court. 2d. Because such sale was made by one of the ministerial officers of said court. 3d. Because such court possessed entire and exclusive control over its own records and proceedings, and full power to correct the irregularities of its ministerial officers, in the execution of its process. (Neal v. Stone, 20 Mo. 294-6; Groff v. Jones, 6 Wend. 522; Hubert v. McCullum, 6 Ala. 221; Mobile Co. v. Moore, 9 Porter, 679; Doy v. Graham, 1 Gilman, 435; Nesbitt v. Dallam, 7 Gill & Johns. 494.)

II. Such application was made within proper time; it was made within a ““convenient” and “seasonable” time. (6 Ala. 221; 1 Gilman, 436; 7 Gill & Johns. 494; McKinney v. Scott, 1 Bibb, 155; Harrison v. Rapp, 2 Blackford, 1; Clamorgan v. O'Fallon, 10 Mo. 112; Mead v. Matson, 9 Mo. 782; Rector v. Harth, 8 Mo. 448; R. C. 1845, p. 831, sec. 8.) The giving of a deed by the sheriff does not prevent the court granting the relief desired; were it so, such relief could seldom be obtained, as the sale and giving of the deed are usually concurrent acts. (Mobile Co. v. Moore, 9 Porter, 679; 10 Mo. 212; 8 Mo. 448. See also Doy v. Graham, 1 Gilman, 435.)

III. The application which was made to set aside such sale, should have been granted; and the refusal of the court below to do so was erroneous. If a purchaser of real estate at a sheriff's sale be the execution plaintiff, he is considered a purchaser, with full notice, and accountable for all irregularities. (Harrison v. Rapp, 2 Blackf. 1; Sunands v. Coltin, 2 Caines, 61.) 1. Said sale was unjust and oppressive, sacrificing a large amount of property for a nominal sum, the affirmance of which, by a judicial tribunal, would sanction the cupidity, avarice and trickery of the defendant in error and his coadjutor. A sale will be set aside where the property has been sold at an inadequate or ruinous price. (Reynolds v. Nye, Freeman's Ch....