Thomas v. Elliott

• Decision Date: 15 December 1908
• Citation: 114 S.W. 987,215 Mo. 598
• Parties: THOMAS et al. v. ELLIOTT et al.
• Court: Missouri Supreme Court

114 S.W. 987

215 Mo. 598

THOMAS et al. v. ELLIOTT et al.

Supreme Court of Missouri, Division No. 1.

December 15, 1908.

1. APPEAL AND ERROR (§ 495)—RECORD—MATTERS TO BE SHOWN BY RECORD —BASIS FOR FINDING.

A statement in the bill of exceptions as to what the court said were the grounds on which it based an order sustaining objections to a partition sale cannot be considered, but the basis for the order must be determined from the record.

2. PARTITION (§ 107)—PROCEEDINGS—VACATING SALE—RIGHT OF PURCHASER TO BE HEARD.

A purchaser of property at a partition sale has an interest which entitles him to be heard on a motion to set aside the sale.

3. PARTITION (§ 106)—SALE—NATURE—"PARTITION SALE."

A partition sale is unlike an ordinary sheriff's sale under execution, being a judicial sale which must be reported to the court for confirmation, prior to which it is of no effect.

4. APPEAL AND ERROR (§ 136)—RIGHT OF REVIEW —STATUTORY AUTHORITY—NECESSITY.

Unless a person aggrieved is given the right of appeal by statute, he has no such right.

5. APPEAL AND ERROR (§ 148)—RIGHT OF REVIEW—PERSONS ENTITLED—PARTITION.

Rev. St. 1889, § 2246, allows appeals, from final judgments only, by "persons" aggrieved. Acts 1891, p. 70, repealed this section and gave an appeal, to "parties" only, from interlocutory orders, including interlocutory judgments in partition determining the rights of the parties. Held that, while the act of 1891 deprived no one of a right enjoyed under the prior statute, yet the purchaser at a partition sale, having no appeal under the earlier statute, was not entitled to have an interlocutory order, setting aside the sale or refusing to confirm it, reviewed either by appeal from the order or on appeal from the final judgment.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Partition by Amos A. Thomas and others against Laura E. Elliott and others. From an order setting aside a sheriff's sale, Simeon Shy, the purchaser, appeals. Dismissed.

Ball & Sparrow, for appellant. I. C. Dempsey and Smoot, Boyd & Smith, for respondents.

VALLIANT, P. J.

This is an appeal from an order setting aside a sheriff's sale in a partition proceeding. The appellant was the purchaser at the sale, but not otherwise a party to the suit.

There is no question as to the regularity of the proceedings in the main case. The decree of sale for partition was made, the sale was regularly advertised, and at the appointed time and place the land was put up to the highest bidder and struck off to Simeon Shy, the appellant. All the parties to the partition proceeding, plaintiffs and defendants (except one of the defendants, who, though duly served did not appear, but made default), joined in filing objections to the confirmation of the sheriff's sale. The objections were on the grounds that appellant and two others had combined before the sale not to bid against each other and to discourage other bidders, and one of them to bid in the property and divide it between them, and that the price bid was inadequate, being from $30 to $35 an acre less than the value. Five of the parties to the suit were minors, represented by their respective guardians or curators.

When the objections came on to be heard, the purchaser appeared by attorney and cross-examined the objector's witnesses, but introduced no evidence himself. The only evidence tending to show combination between appellant and others named was that he and one of them were seen in consultation at the courthouse just before the sale, and that that one had previously expressed his desire to buy the land and said he was willing to pay $70 or $80 an acre, yet after the consultation above mentioned he bid only $40 an acre and let it go to the purchaser at $41.50, and almost immediately after the sale the three divided the land among themselves. A witness also testified that he and his father-in-law were discussing the prospective sale after it was advertised, and witness was urging his father-in-law to buy it at a price as high as $11,000, whereupon appellant, being present, said "he did not like to say anything about other people's land, but the creek got over it and there was some very poor land next to Bartlett's." The land was struck off to appellant for $41.50 an acre. The evidence was to the effect that it was worth from $50 to $75 an acre. After the court made the order sustaining the objections and setting aside the sale, appellant filed a motion to set aside the order and approve the sale, which motion was overruled and exception saved. The record proper then shows that appellant filed his application and affidavit for an appeal, the appeal was allowed, and time given him to file his bill of exceptions, which he did in the time allowed, but the affidavit does not appear in the bill of exceptions or elsewhere in the record. In the bill of exceptions is set out what the court said as the grounds on which it based the order sustaining the objections to the sale.

1. Counsel for appellant in their brief say that the only finding of the court on which its order was based was that appellant, not being a party to the partition suit, had no right to be heard. That does not appear in the record in this case; the statement in the bill of exceptions as to what the judge said on that point is of no consequence. What, in the appellant's bill of exceptions, is called "findings of fact," do not even conform to the requirements of section 695, Rev. St. 1899 (Ann. St. 1906, p. 704). The only thing this...