Stewart v. Severance

• Decision Date: 28 February 1869
• Citation: 43 Mo. 322
• Parties: R. M. STEWART, Appellant, v. JOHN SEVERANCE et al., Respondents.
• Court: Missouri Supreme Court

43 Mo. 322

R. M. STEWART, Appellant,

v.JOHN SEVERANCE et al., Respondents.

Supreme Court of Missouri.

February Term, 1869.

Appeal from Fifth District Court.

This was an action to set aside an execution sale of plaintiff's land. At the sale the property was purchased by defendants. It appears that the clerk of the Buchanan Court of Common Pleas, on the 28th day of May, 1864, issued from his office an execution reciting that Russell H. Wrinkle, in his lifetime, “on the 13th day of September, 1860,” recovered a judgment in said court, against Robert M. Stewart and others, for $3,798.40 and costs; that the execution was delivered, on the 31st day of May, 1861, to the sheriff of Buchanan county, who levied on the property in said execution mentioned, prior to the June term, 1864, but sold the same on the 20th day of December, 1864.

The petition averred, among other things, that, before said sale, defendants, for the purpose of purchasing said property for less than it was worth, and for the purpose of cheating and defrauding plaintiff, agreed with each other that they would not bid against each other at said sale, and that they would purchase the property for their joint benefit; that they would represent to purchasers at said sale that they were purchasing for the benefit of plaintiff, and that, after they were repaid for their outlay out of the proceeds of said property, they intended to convey the balance of the property to plaintiff, and that said property should be bid off in the names of defendants Severance and Robert Stewart; that plaintiff had no knowledge or notice of this agreement before said sale; that he was at the time absent from the State; that it was agreed that defendant Carter should bid in said property as the representative of defendants, but should bid in the name of defendants Severance and Stewart, at certain nominal prices, and that said nominal prices were agreed upon between defendants before the sale; that in pursuance of said arrangements between said defendants, defendant Carter did bid for said property in the name of Severance and Stewart, and caused the same to be struck off to them, and for a nominal price; that said defendants made known and stated to various persons and bidders, or persons who desired to bid at said sale, and who were there present for that purpose, that they (the defendants) intended to bid in the property, to be sold for the benefit of plaintiff, and that they would make it bring the amount of the execution, and that after they were reimbursed for their outlay they would hold the balance for the benefit of plaintiff.

The petition charges that, in consequence of said representations made by defendants as aforesaid, persons who desired to bid for said property at said sale were prevented from so doing; that, as a result, defendant Carter bid in all of said property at merely nominal prices, and for one-tenth its real value, in the name of Severance and Stewart; that the property was sold for $5,488.50, whilst the same was worth $60,000; that after the sale, by a fraudulent arrangement between defendants, the sheriff's return was made to show that the property was struck off to and bought by defendants Severance and Weakley. The petition charges that said acts of defendants were and are a fraud upon his rights, and that said sale should be set aside, and prays a decree for that purpose, and for an account, etc., and for all proper relief.

Defendants answered, admitting the clerical misstatement of the date of the judgment in the execution, but denying most of plaintiff's allegations.

At the June term of said Common Pleas Court for 1868 this cause was tried by the court, and judgment was rendered for defendants, and plaintiff's petition was dismissed. The case went up to the Fifth District Court, where it was affirmed, and comes here by appeal.

Further facts appear in the opinion of the court.

Strong & Chandler, and Hall & Oliver, for appellant.

I. Courts of equity will grant relief upon the ground of fraud, established by presumptive evidence, which evidence courts of law would not always deem sufficient proof to justify a verdict at law. (1 Sto. Eq. § 190; Chesterfield v. Jansen, 2 Ves. 155-156.) A positive fraud may be committed by creating a false impression. (1 Sto. Eq. § 192, note 5; 2 Wheat. 178-192; 6 Ves. 605.) A false impression may be created as well by acts as words. (1 Sto. Eq. § 192, and note 2; 3 Blackst. Com. 165; 2 Kent's Com. 484; 2 Wheat. 195.) A sale will be deemed fraudulent and will be set aside where there was any collusion or contrivance to enable the purchaser to obtain the property below its value. (1 Sto. Eq. § 29, notes 1, 2; 20 Mo. 294; Jones v. Caswell, 3 Johns. Cas. 29; Doolen v. Ward, 6 Johns. 194; Howard v. Castle, 6 T. R. 642; 3 Ves. 619, 623-4; 1 Paige, 147; 4 Johns. Ch. 119; 1 Watts, 163; 2 Washb. Real Prop. 176-9; 1 Lead. Cas. Eq. 562; 25 Mo. 309; 27 Mo. 119; 25 Ill. 176; 13 Penn., 1 Harris, 516-17.)

II. Where the price for which land was sold was greatly inadequate, the court will scan the proceedings narrowly, and will require a strict regularity in the proceedings of sale. (23 Mo. 12, 13, 14, 22; 3 Monr. 273-5; 1 Sto. Eq. 246, note 1.)

III. The execution under which the sale was made was unsupported by a judgment. Said execution, not reciting the date of the judgment, was absolutely void. Our present statute is different from that of 1825 in the matter of the execution reciting the date of the judgment, showing that the Legislature in making the change regarded the recitation as essential. (Stat. 1825, p. 363, § 2; Gen. Stat. 1865, p. 640, § 2.) The execution must recite the day on which the judgment was rendered. (16 Mo. 495; 7 Conn. 6; 2 Tuck. Com. 330.) The well-established rule is, that a sheriff's deed must contain recitals required by the statutes. (18 Mo. 580; 36 Mo. 121.) Statutes prescribing forms of proceedings or modes of proof are strictly construed. (Sedg. on Stat. 319; Davison v. Gill, 1 East. 64.)

IV. The execution under which the sale of plaintiff's property was made was dead at the time of sale. (Gen. Stat. 1865, p. 646, § 51; Sess. Acts 1863, p. 2, §§ 1-3.) The sale not having been made at the June or return term of the court, the execution was continued in force until the September term, but after that term it was dead; and sale made at the December term, 1864, being the third term after issue of execution, was void. (36 Mo. 115-24; 37 Mo. 194.) An execution in this State has no validity except what is imparted to it by statute. The General Assembly having taken up the subject and legislated upon it, the common law is entirely superseded. (3 Mo. 333; 16 Mo. 543-7; 10 Mass. 39; 1 Met. 130; 3 Comst. 9; Sedg. Stat. 94; 20 U. S. Dig. p. 13, § 19; 21 U. S. Dig. p. 11, §§ 16-19; 19 U. S. Dig. p. 12, §§ 3-6.)

V. The court erred in excluding the evidence of John Stewart in relation to the question asked about statements of certain Irishmen at the sale. Such statements were, apart from the res gestæ, declarations made at the time the act was done, which they were intended to characterize, and which they were well calculated to unfold the nature and quality of, and to explain as a part of the res gestæ. (10 Mo. 772; 3 Conn. 250; 3 Ind. 522; 3 Phil. Ev. 228.) If what was said at the time of the sale constituted a part of the res gestæ, it is not necessary that the declaration be proven by the speaker. (3 Phil. Ev. 228; 11 Pick. 469.) Where a person's acts are admissible, what he said at the time about his acts is also admissible. (3 Phil. Ev. 213, 210; 1 Greenl. Ev. § 108, n. 1, 2; id. p. 148, n. 3; Phelps v. Foot, 1 Conn. 387; 2 Hill, 259; 12 Wend. 45.)

Vories & Vories, and Bassett, Lawson & Van Waters, for respondents.

I. Parol evidence may explain a discrepancy between the judgment and execution. If the error is amendable, it will be disregarded in equity. (8 Blackf. 179; 4 Blackf. 263; 6 Ohio St. 255; 8 Ohio St. 128; 9 U. S. Dig. 27; Gwynne on Sheriffs, 337, 354-75; 5 Cow. 529; 4 Wend. 585; 10 Johns. 381; 9 Cow. 182; Brown v. Betts, 13 Wend. 30; Jackson v. Walker, 4 Wend. 462; 15 Me. 64; Webster et al. v. Blount et al., 39 Mo. 500; Iowa Dig. 449; 3 Green, Iowa, 385; 8 Wend. 676; 18 Johns. 96; 28 Ill. 264; 10 Ohio 434; Gen. Stat. 1865, p. 570, § 5.)

II. If the sheriff does not comply with the directions of the statute, it will not avoid a deed in the hands of a purchaser. (4 Wend. 463; 39 Mo. 500; Chase v. Gillman, 15 Me. 64.)

III. A combination of interest between different persons to purchase property at a sheriff's sale is not necessarily corrupt. It is the end to be accomplished which makes such a combination lawful or otherwise. If it be to depress the price of the property by artifice, the purchase will be void; if it be to raise the means of payment by contribution, it will be valid. (1 Watts & Serg. 136; 10 Watts, 313; 3 Met., Mass., 384; 11 Paige, 431; Wheat. Dig., Supplement, 1865, p. 303, §§ 239-241.)

IV. The execution in this case was not void because there was no sale at the June or September term of the court in 1864. The act of plaintiff caused the first execution to be suspended by appealing said cause to the Supreme Court, said appeal being a supersedeas. The judgment of the court being affirmed upon said appeal, the present venditioni exponas, or execution reciting the former levy, as is provided for in section 1, act of 1863, p. 20, was issued, returnable to the June term, 1864. The testimony of Severance, as to an arrangement made by plaintiff in this suit to have no sale made at the June term, 1864, although hearsay testimony, was received without objection. It shows that it was for the accommodation of plaintiff, and the indorsement of the sheriff upon the execution corroborates the fact. Section 51, page 646, of the Gen. Stat. 1865, relied upon by plaintiff, has nothing to do with this case. The sale was in December, 1864, and is governed by session acts of 1863, p. 20, sections 1, 2. Und...