Tucker v. Burford
| Decision Date | 07 July 1936 |
| Docket Number | No. 22174.,22174. |
| Citation | 95 S.W.2d 866 |
| Parties | TUCKER et al. v. BURFORD et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Lewis County; Paul D. Higbee, Judge.
"Not to be published in State Reports."
Suit by Daisy Tucker and others against Davidge T. Burford and others. From an adverse judgment, the named defendant appeals.
Affirmed.
See, also, 88 S.W.(2d) 144.
J. L. Brightwell, of Jackson, Mich., for appellant.
Walter H. Hilbert, of Monticello, Mo., for respondents.
The controversy in this case grows out of a partition of a tract of 120 acres of land situated in Lewis county, Mo. The partition suit was filed on behalf of the four plaintiffs in the circuit court of Lewis county, Mo., at Monticello on January 29, 1931.
There is no controversy about the fractional portions which belonged to the part owners; each of the four plaintiffs owned an undivided one-sixth interest and defendant Hayden M. Burford owned an undivided one-sixth interest and defendant Davidge T. Burford, who is the appellant here, owned the remaining one-sixth interest. Creditors of some of the part owners were parties to the suit, but there is no controversy arising in respect thereto.
All of the defendants were personally served with process more than thirty days prior to the beginning of the regular June term of court and none of them answered. There were only two terms of court a year at Monticello, viz., first Monday in January and third Monday in June.
On June 17, 1931, being the third day of the June term, the court entered its interlocutory decree finding interests as set out in the petition and allowed the claims of creditors as against certain individual shares and also found that the land could not be partitioned in kind and ordered the sale to be made by the sheriff at a regular term of either the circuit court or the county court of Lewis county. The court then adjourned until September 8, 1931, then adjourned until October 10, 1931, and then adjourned until December 7, 1931, on which date the sheriff filed his report of sale which, inter alia, showed that after due publication he sold the real estate at public sale on October 10, 1931, during the June term of the circuit court, and while the court was in session, to Charles E. Fee and Lena Fee his wife, for the sum of $3,265 and that 10 per cent. of the purchase money had been paid by the purchasers and the remainder of their bid was secured by good and sufficient security according to law and the order of the court.
The appellant, Davidge T. Burford, filed a motion asking that the sheriff's report and the sale be set aside for the following reasons: That the price is less than what the said land could now be sold for, and that the price it sold for is grossly inadequate; that this defendant has and does here make an offer of $3,400 for said land and that it will be clearly to the interest of all parties that the sale be set aside; that said sale was prematurely had; and that proper notice was not given of said sale as required by law. This was verified by the affidavit of Davidge T. Burford, the appellant here, but no testimony was offered to support the averments set out in the motion. This motion was overruled and the court, thereafter, by an order of record, approved the report of sale and made certain allowances of costs, including attorneys' fees and also for delinquent taxes. The total costs and allowances amounted to the sum of $632.46, leaving in the hands of the sheriff for distribution the sum of $2,632.54, and the court directed the sheriff to distribute and pay the sum of $438.75, two-thirds to each of the six owners and their creditors and to make a deed to the purchasers.
Then the sheriff filed his report of distribution, as ordered, made his deed...
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