Teubner v. Moller

• Decision Date: 31 October 1849
• Citation: 12 Mo. 528
• Parties: TEUBNER v. MOLLER.
• Court: Missouri Supreme Court

12 Mo. 528

TEUBNER

v.MOLLER.

Supreme Court of Missouri.

October Term, 1849.

APPEAL FROM GASCONADE CIRCUIT COURT.

FRISSELL, for Appellant.

1. That there is no equity in the bill, and the demurrer should have been sustained. If the sale did take place on the 24th of September, when the land was advertised for sale on the 23rd, and the sheriff in the recitals in his deed states that the sale took place on the 23rd, the remedy of Moller was against the sheriff on his bond. If the recital in the deed be false, evidence is not admissible to controvert it, as between Moller and Teubner Stat. of 1845, p. 484, § 49; Phillips' Ev. (Cowen & Hill), part 2nd, 1086, 1087, 1094-5; 7 Mass. R. 382, 392; 13 Mass R. 483; 4 Mass. R. 478; 9 Mass. R. 95. 2. That even if the judgment was satisfied, still Teubner's title is good, unless he had notice of the satisfaction. In this there is no averment in the bill. Reed v. Austin's Heirs, 9 Mo. R. 721. 3. That Moller had no right to complain of the inadequacy of price; for by his own act he had embarrassed the titled At the time of the sale there were two deeds on record for those lots, one from Moller himself, and another from the sheriff.

SKINNER, for Appellee.

1. A sale of real-estate by a sheriff, made after the day on which the writ is returnable, is void and passes no title to the purchaser. Simms v. Randal, 2 Bay, 524; McFarland v. Wilson et al. 2 Smedes & Marsh. 269; 3 Smedes & Marsh. 468; Rev. Stat. 1835, title Execution, § 39; also same Statute for 1845, title Execution, § 41. 2. A return of satisfaction on an execution, extinguishes the lien of the judgment upon which the execution issued, so that property subsequently sold under another execution on the same judgment, is not subject to it or bound by such sale. Parks v. Person, 1 Smedes & Marsh. 76.3. When more property is sold under an execution than is sufficient to satisfy the execution, and the property could have been sold in parcels, the court will set aside such sale. 7 Mo. R. 346. 4. A direct application to the court by motion, and notice to the opposite party, &c., would not have sufficed in this case; because the deed purported that the sale took place on the 23rd September, 1846, and in pursuance of the command of the writ, and in conformity to the advertisement; whereas, in fact these recitations were false, but could not have been questioned in any collateral proceeding; but a bill in chancery to set aside said deed for the fraud, is the only and legitimate remedy. 5. And admitting that a motion in the manner aforesaid would have been a proper remedy, yet I contend that a bill in chancery is also a concurrent remedy; because fraud gives the Chancellor jurisdiction in all cases, and the bill charges a fraudulent combination between the appellant and the sheriff, and as to whether this allegation was proven or not, this court will presume that the same was proven, as the evidence is not preserved in the record, in which case this court will presume that all things were proven which were necessary to have been proven in order to a decree in the court below. 6. That a bill in equity is a legitimate remedy in this case. 3 Ch. R. 57, 58, 22. Also, a bill may be brought to set aside a conveyance by deed and fine, if indirectly gained. Woodhouse v. Brayfield, 2 Vt. R. 307; yet it is a principle of law that there can be no averment in contraction of a fine, 5 Cruise, p. 80, § 60.7. It is no objection that this bill was dismissed as to Wyatt at the return term, when there was a return of no service as to him and the appellant, because Wyatt had no interest or title in him to be affected, and because this cause is justified by Stat. 1845, p. 838, § 16. 8. It is no objection that porol evidence was introduced to contradict the recitation in the sheriff's deed, that the land was sold on the 23rd of September, 1846, because the bill charges fraud in the transaction, and this species of evidence was the only evidence that could have been adduced to prove that fact, since there was no record evidence; and in any other proceeding the recitals could not have been contradicted. 9. The decree cannot be reversed, because the evidence was not preserved in a bill of exceptions. Nor did the appellant move in arrest of judgment or for a new trial; nor did he ask any instructions in the case. If this proceeding by bill in chancery is not the remedy that should have been adopted, the appellant should have demurred; and if the court erred in overruling the demurrer after a decree, the appellant should have then moved in arrest; and if the court overruled the motion in arrest, then to have excepted, &c.ABBOTT, on same side.

1st. The suit was properly brought by bill in chancery. On a bill brought in equity, charging fraud in sheriff's sale, the court entertaining the bill decreed a re-conveyance, &c. Viner's Abr. title Sheriffs' Sales. It is no objection that parties to a fraud have their remedy at law; for in cases of fraud the court of equity has a concurrent jurisdiction with the common law, matter of fraud being the great subject of relief there. 2 P. Williams, 225; 7 Johns. R. 194. Sheriff's sale and deed remedy of party injured by summary application to the court under whose process the officer acts, or by bill in equity. Jackson v. Roberts, 7 Wend. 83. Inadequacy of price, coupled with circumstances which show oppression, will be regarded as fraud, and entitle a party to relief in equity. Holmes v. Fresh...