State v. Innes

• Decision Date: 20 April 1909
• Citation: 137 Mo. App. 420,118 S.W. 1168
• Parties: STATE ex rel. HARTLEY v. INNES et al.
• Court: Missouri Court of Appeals

118 S.W. 1168

137 Mo. App. 420

STATE ex rel. HARTLEY v. INNES et al.

St. Louis Court of Appeals. Missouri.

April 20, 1909.

Rehearing Denied May 11, 1909.

1. TAXATION (§ 689)—SALE FOR TAXES—PROCEEDINGS ON — MOTION TO SET ASIDE — FINDINGS.

Though, in a tax suit on the hearing of a motion to set aside a sale of a lot for taxes on the ground that the sheriff failed to notify an attorney of the date of the sale as agreed, the court's direction to the sheriff to give no promise to notify attorneys in the future seems inconsistent with a finding that none had been given in the case in question, it was not equivalent to a direct finding that the sheriff promised to notify the attorney as was claimed.

2. APPEAL AND ERROR (§ 1010)—REVIEW— MOTION TO SET ASIDE EXECUTION SALE— WEIGHT OF EVIDENCE.

A motion to set aside an execution sale lies on the law side of a court, and the evidence taken at the hearing cannot be weighed on appeal.

3. EXECUTION (§ 247)—SALES—GROUNDS FOR SETTING ASIDE IN GENERAL.

Execution sales may be set aside on motion for about the same reason as judicial sales in the strict meaning of the words may be.

4. TAXATION (§ 689)—INADEQUACY OF PRICE — GROUND FOR SETTING ASIDE SALE FOR TAXES.

Though for inadequacy of price a sale on execution will not be set aside, gross inadequacy is a circumstance to be considered.

5. EQUITY (§ 4)—"ACCIDENT OR SURPRISE."

Accident or surprise, as used in equity jurisprudence, embraces not only various forfeitures due to accidents in the popular sense, but such unforeseen events, misfortunes, losses, acts, or omissions as are not the result of negligence or misconduct of the party.

6. EQUITY (§ 4)—"ACCIDENT."

Accident is an unforeseen and unexpected event, occurring external to the party affected by it and of which his own agency is not the proximate cause, whereby, contrary to his own intention and wish, he loses some legal right or becomes subjected to some legal liability, and another person acquires a corresponding legal right, which it would be a violation of good conscience for the latter person, under the circumstances, to retain.

7. EQUITY (§ 4)—"ACCIDENT"—"SURPRISE."

The word "surprise" is used interchangeably with "accident" to designate the emergencies giving rise to accidents; both words signifying a detrimental condition or situation wherein a party is placed unexpectedly, and against which ordinary prudence would not have guarded.

8. TAXATION (§ 689) — SALE FOR TAXES — GROUNDS FOR SETTING ASIDE.

Where, owing to a misunderstanding, an attorney fully believed he was to be notified by the sheriff of a sale on execution for taxes of his client's lot, and was thereby led to make no further inquiry, or watch for advertisement of the sale made for an inadequate price, it should be set aside.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Tax suit by the State, on the relation of J. H. Hartley, against Belle Innes and others. From a judgment overruling a motion to set aside a sale of a lot under the judgment for delinquent taxes, defendants appeal. Reversed.

J. P McCammon, for appellants. J. W. Goad, for respondent.

GOODE, J.

Appeal from a judgment overruling a motion to set aside an execution sale of a lot in the city of Springfield under a judgment for the amount of the delinquent taxes on the lot for the year 1902, rendered against Rosina I. Kellett and 29 other defendants, as the heirs of Susan Ann Innes, deceased. The tax suit was permitted to correct a flaw in the title, and the attorney for Mrs. Kellett looked after the case, wrote the execution on the judgment, had it put in the hands of the sheriff to advertise and sell the property, and told said officer he (said attorney) wished to be present at the sale, which would occur during the September term of the circuit court, 1905. During the term the attorney for the heirs went to the sheriff's office and asked a deputy once or twice or the sheriff or both if a day had been fixed for execution sales for taxes, and was told no day had been fixed. According to the attorney, the deputy agreed to notify him when a sale day was fixed so he (the attorney) could be present and bid in the property for his client, and the attorney, relying on this promise, which was not kept, failed to attend the sale and the property was sold to other parties for $100, or less than one-fifth its conceded value. A motion was filed in the circuit court before the purchasers had paid their bid to set aside the sale, and was overruled after a hearing. The testimony of the deputy sheriff and that of the attorney for Mrs. Kellett agreed regarding inquiries by the attorney about when the sale would take place; but the deputy denied promising to notify the attorney of the day of the sale. On the sale day a man called the deputy's attention to the fact that Mrs. Kellett's attorney was interested in the sale, and the deputy said he did not speak to or telephone said attorney after being told this, because he supposed the latter would be present at the sale. The attorney testified he did not see the published advertisement of the sale, and knew nothing of notice having been given until after the property had been sold; that he was diligent in inquiring at the sheriff's office, but; after the deputy promised to notify him of the day of sale when it was fixed, he relied on the promise, and gave no further attention to the matter. When appellant's attorney testified to the promise by the deputy, the court said: "Mr. Sheriff, you must not hereafter make any promises to notify attorneys, nor notify them of the time of sale under execution. Let the notice that is published be the only notice given. It is the business of attorneys to look after the executions in which they are interested."

Without conceding the sale should be set aside if the sheriff or his deputy promised to inform Mrs. Kellett's attorney the date it would occur, the attorney for the purchasers argues that, as the motion to set aside was overruled and the facts were not expressly found or declarations of law given, the court below must be presumed to have found the promise was not made. The court's direction to the sheriff to give no promise to notify attorneys of the dates of execution sales in the future seems rather inconsistent with a finding that none had been given in the present instance, and suggests the motion was determined against appellant for some other reason. But this remark was not equivalent to finding positively the attorney had been promised, and we must dispose of the appeal on the assumption the court below found he had not been. We do this in deference to the decision of the Supreme Court in Holden v. Vaughan, 64 Mo. 588, that a motion to set aside an execution sale lies on the law side of a court, and the evidence taken at the hearing of such a motion cannot be weighed on appeal. The extent of the contention for the purchasers upon this point is that the court below found the deputy gave no promise, and not that the attorney was without a belief or impression to...