Stewart v. Nelson

• Decision Date: 31 July 1857
• Parties: STEWART, Respondent, v. NELSON, Appellant.
• Court: Missouri Supreme Court

25 Mo. 309

STEWART, Respondent,

v.NELSON, Appellant.

Supreme Court of Missouri.

July Term, 1857.

1. Where a purchaser at a sheriff's sale practices any deceit or imposture, or is guilty of any trick or device, the object of which is to get the property at an under-value, the sale may be set aside in favor of the defendant in the execution.

Appeal from Cooper Circuit Court.

The facts sufficiently appear in the opinion of the court.

Torbert, Gardenhire, Morrow and Parsons, for appellant.

Adams and Hening, for respondent.RYLAND, Judge, delivered the opinion of the court.

This was an action brought by Stewart against T. W. Nelson to set aside a sheriff's sale of real estate and to compel the defendant, who was the purchaser, to convey to him the title acquired by the sheriff's deed. The defendant answered the petition, and the cause was by the parties submitted to the court, who found the facts as follows: “That the plaintiff was indebted to the county of Cooper as stated in his petition; that he had given a mortgage to secure the debts as therein stated; that judgment had been rendered at the times and for the amounts mentioned in plaintiff's petition; that executions were issued upon the judgments, and that the property described in the plaintiff's petition was levied upon and sold under said executions, as stated in the plaintiff's petition. The court also finds that the real estate sold consists of two distinct tenements, and that it was all sold together in one lump. There was no evidence, however, showing that the property would have sold for a better price if sold separate. The court further finds that at the time of the sale, the plaintiff was in the State of California, and had no notice of the proceedings against him, except by order of publication; that he had no knowledge or information of the sale until after it took place; and the court further finds that the defendant bid off the property in a lump at one bid; that no other bid was made. The court further finds that, prior to the sale, the justices of the County Court of Cooper county--to-wit: Hazell Rice and Wade--made the arrangement with Joseph L. Stephens, who was the county attorney, to-wit: That he (Stephens) was to attend the sale and purchase the property, if it went at a price not exceeding fifteen hundred dollars, which they considered as about the amount, with costs, then due the county; that Stephens was to hold the property, if he bought, first, to secure the county of Cooper in the amount owing to the county, and suffer the plaintiff, on his return from California, if he returned in a reasonable time, to redeem the same by the payment of the amount, interest and costs due the county; and that Stephens consented to act in the matter, to purchase the property and hold it on the terms aforesaid; and that Stephens, on the day of sale, made an arrangement with the sheriff to let him know when...