Schwartz v. Dryden

• Decision Date: 31 October 1857
• Citation: 25 Mo. 572
• Parties: SCHWARTZ et al., Plaintiffs in Error, v. DRYDEN et al., Defendants in Error.
• Court: Missouri Supreme Court

25 Mo. 572

SCHWARTZ et al., Plaintiffs in Error,

v.DRYDEN et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1857.

1. In partition sales, in statutory proceedings for partition, there is no warranty of title.

2. Where the parties to a statutory proceeding for partition have no title to a portion of the land, a purchaser, at the partition sale, of such portion-- there being no fraud or misrepresentation--will not be entitled to have such sale set aside as to such portion on the ground of this want of title. (SCOTT, Judge, dissenting.)

Error to Marion Circuit Court.

A suit was instituted in the Marion Circuit Court for partition of certain tracts and lots of land among the heirs of Pocahontas Sloan, deceased. In this proceeding John D. S. Dryden, as commissioner appointed by the court, sold to Charles Schwartz and wife and William Lindig a certain lot in the town of Palmyra, 305 feet in width, and 289 1/2 feet in length. Said lot had formerly belonged to Samuel C. Sloan, an ancestor of the parties to the proceeding for partition, who, with his wife, Pocahontas, had conveyed all of said lot, except a strip of forty-one feet in width by 289 1/2 feet in depth on the east side of said lot, to trustees of the town of Palmyra, to be used as a graveyard. The purchasers of said lot at the partition sale moved the court “for an order setting aside said sale for so much at least of said lot as had previously been sold by Samuel and Pocahontas Sloan to the trustees of the town of Palmyra for a graveyard, and directing the said commissioner, John D. S. Dryden, to refund to plaintiffs a proper proportion of the funds paid him upon the sale.”

On the hearing of this motion it appeared in evidence that the proceedings for the sale of the land sought to be partitioned were not closed, but were still pending; that at the time of said sale by Dryden, as commissioner, he did not know that said Samuel C. and Pocahontas Sloan had made the conveyance above mentioned to said trustees; that the sale was made on the ground, and many graves were there in full view of the purchasers and other bidders; that at the sale of this lot the question was publicly asked, whether there had ever been any conveyance made of the ground occupied by the graves, to which the commissioner, publicly, in the hearing of the bidders, replied, he did not know; that he had not examined the records, and that he only offered to sell whatever title the petitioners for partition might have in the lot. The court overruled the motion.

Lipscomb, for plaintiffs in error.

I. The parties to the partition had no title whatever to that portion of the lot included in the grant made by Sloan and wife to the trustees of Palmyra. The motion to set aside, having been made while the proceedings were yet open and pending, ought to have been granted. This case differs materially from Owsley et al. v. Smith's Heirs, 14 Mo. 155. In that case the heirs of Smith claimed title. In this case the heirs of Sloan do not claim title. They admit absolute conveyance by their parents as early as 1832. Again, in Owsley v. Smith's Heirs, the proceedings for partition had been closed, and Owsley sought to enjoin a judgment obtained for the purchase money. Here the proceedings for partition are yet open and pending. The motion to set aside had been made at the earliest moment. The commissioner, who is also the attorney who brought the suit for partition, and defendant in this motion, was ignorant of the conveyance of 1832. By mistake the suit embraced the land sold in 1832. Equity and good conscience require that the motion should prevail.

Dryden, for defendants in error.

I. The plaintiffs in error were purchasers at a judicial sale. There is no pretense of fraud or misrepresentation. The maxim, “ caveat emptor,” applies. (Owsley v. Smith's Heirs, 14 Mo. 153.)

II. The plaintiffs ask to set aside the sale as to part only of the property sold. If set aside at all, it would have to be set aside in toto. The relief cannot be had by motion.NAPTON, Judge, delivered the opinion of the court.

In the case of Owsley et al. v. Smith's Heirs, 14 Mo. 153, this court held that in partition sales under our statute there was no warranty of title. This decision is based upon the particular phraseology of our statute, and seems to have been acquiesced in. No case has been brought up to this court, since that decision, in which the court has been asked to review the subject, nor is it attempted in this case.

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