Stewart ex rel. Sibley v. Garvin

• Decision Date: 31 October 1862
• Citation: 33 Mo. 103
• Parties: E. C. STEWART, SHERIFF, &c., USE OF SIBLEY et al., Respondents, v. ALEXANDER GARVIN, Appellant.
• Court: Missouri Supreme Court

33 Mo. 103

E. C. STEWART, SHERIFF, &c., USE OF SIBLEY et al., Respondents,

v.ALEXANDER GARVIN, Appellant.

Supreme Court of Missouri.

October Term, 1862.

Appeal from St. Charles Circuit Court.

Edwards & Randolph, for appellant.

The Circuit Court erred in refusing to give the instruction asked for by the appellant.

It is well settled that in partition sales the sheriff, like an auctioneer, is the agent of both parties; hence a memorandum made by the sheriff in a partition sale is binding on the purchaser, and takes the case out of the statute of frauds. (Stewart v. Garvin, 31 Mo. 38; 5 Mon. 451; 7 Mon. 615.)

If the sheriff is the agent of both parties, his act in having the sale set aside, a new order of sale made, and re-advertising the property for sale under it, is binding upon the parties to the partition suit in this cause.

Lewis & Alexander, for respondents.

I. The only question at issue in this case is whether the readvertising of the sale of the land by the sheriff was such an abandonment of the former sale as would exonerate the purchaser from his liability for the purchase money.

1. It appears from the record that the order directing a resale was made by the court upon its own motion, against the remonstrance and protest of the parties in interest represented by respondent. Nor does it appear that the respondent himself had any agency in procuring this order. The only question that could arise upon the effect of such an order, would be as to the sheriff's responsibility as a ministerial officer for disobedience of its terms. It can have no binding effect upon the respondent, or those whose interest he represented, touching the rights already vested in them by the sale. They had never surrendered, or intimated a desire to surrender, any of those rights.

2. The implied agency of the sheriff never extended beyond the fact of the sale and the doing of such acts as were necessary to its consummation. He was agent of the partitioners for the purpose of selling their land, not for the purpose of afterwards surrendering any rights which might be vested in them by the sale. He was agent of the purchaser for the purpose of accepting and closing his bid, for the proper entry or memorandum, and for no other purpose. Having done these things, his functions as agent of either party cease, and he could not if he would abandon or annihilate the rights of either party.

II. A contract once made can only be abandoned by mutual action of the parties. There was no such mutuality in a mere advertisement by the sheriff. It does not appear that the appellant ever, by any means whatever, became a party to the alleged abandonment of the sale. He was not even a party to the order of court directing a re-advertisement.

DRYDEN, Judge, delivered the opinion of the court.

This is a suit brought to recover the third instalment of the purchase price of two lots of land in the St. Charles common, sold to the defendant by the plaintiff, as sheriff of St. Charles county, under an order of sale in partition...