State ex rel. Beck v. Yancy

• Decision Date: 31 October 1875
• Citation: 61 Mo. 397
• Parties: STATE ex rel. ADAM BECK, Appellant, v. JEREMIAH YANCY, et al., Respondents.
• Court: Missouri Supreme Court

61 Mo. 397

STATE ex rel. ADAM BECK, Appellant,

v.JEREMIAH YANCY, et al., Respondents.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Bates County Circuit Court.

Boggess & Sloan, with Bassett, for Appellant.

I. Yancy, having after judgment conveyed to Mrs. Dixon, had no longer any interest in the sale of the land, and Mrs. Dixon being no party to the record, and having acquired whatever claim she had after judgment, and subject to the lien thereof, neither she nor Yancy had any right to move to set aside the sale. (Hicks & Hammond vs. Perry, 7 Mo., 346.)

II. Section 30, p. 608, Wagn. Stat., does not require the officer in selling land under execution, to divide the same, even in cases where it is susceptible of division. The matter is left to the sound discretion of the officer, which, when fairly and honestly exercised, will not be reviewed by the courts, especially where the real estate sold consists of a single town lot. (Hicks vs. Perry, supra;Rector vs. Hart, 8 Mo., 448; Evans vs. Wilder, 5 Mo., 313; Lisa vs. Lindell, 21 Mo., 127.)

W. P. Johnson & E. J. Smith, for Respondents.

I. The lot was susceptible of division and the sheriff should have divided it into three lots, and in which case, one-third would have paid the judgment. (Wagn. Stat., 608, § 30; Hicks vs. Perry, 7 Mo., 346; Rector vs. Hart, 8 Mo., 448.)

II. On a motion to set aside a sale, the matter rests very largely in the sound discretion of the court passing upon the motion. And where the sale is set aside, this court will not reverse, unless it is clear that error has been done so as to work a great hardship on the purchaser, which could hardly be where the sale is set aside. Certainly it is not so in this case. (Rector vs. Hart, supra;Goode vs. Crow, 51 Mo., 212.)

WAGNER, Judge, delivered the opinion of the court.

From the record it appears that a judgment was recorded against the defendant, Yancey, for $40 debt and $11.52 cost; and to satisfy an execution issued thereon the sheriff levied upon and sold a lot in the town of Butler, as the property of Yancey, for the sum of $157, which paid off the execution and left a balance of $94.35 in the sheriff's hands. A deed was made to the purchaser, and the money due on the execution was paid to the attorney of the plaintiff in the execution.

At the same term at which the sale took place, Yancey and Dixon, the latter having purchased the lot from the former subsequent to the rendition of the judgment, appeared and filed their motion to set aside the sale, mainly on the ground that the sheriff had failed to do his duty in not dividing the lot into parcels when he exposed it for sale. This motion the court sustained, and ordered that the sale be set aside, the deed canceled, and the purchase money refunded.

It seems that the lot in controversy is a corner lot, in the best business part of the town of Butler, and has a front of seventy-five feet on the courthouse square, by a depth of one hundred feet on another street. The witnesses on the motion all placed the value of the lot at from twelve hundred to fifteen hundred dollars, though it was shown that there was some difficulty about the title. It...