Turner & Knight v. Adams

• Decision Date: 31 March 1870
• Citation: 46 Mo. 95
• Parties: TURNER AND KNIGHT, Defendants in Error, v. INCREASE ADAMS, Plaintiff in Error.
• Court: Missouri Supreme Court

46 Mo. 95

TURNER AND KNIGHT, Defendants in Error,

v.INCREASE ADAMS, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1870.

Error to Sixth District Court.

Henderson & Dyer, and Campbell, for plaintiff in error.

I. Until Turner and Knight proceed to sell the land in ques tion under their judgment in attachment, they are in no condition to ask that the deed of Adams, made by the sheriff in 1862, be set aside.

II. The lien of an attachment writ is not such an interest in land as to enable the plaintiffs in the proceedings to attach a legal title.

III. The mere statement of Adams to the sheriff, that he would pay off the judgment against Buchanan and himself, or that he would not sell at that term of the court, constitutes no fraudulent representation. 1. Because it was not made to Turner and Knight. 2. It is not alleged that it was intended and designed that it should be communicated to them, or either of them, or their agents. 3. Adams was a defendant in the execution, not the plaintiffs or the agent of the plaintiffs. Bacon and Milroy were the plaintiffs, and no declarations of Adams in regard to the sale or postponement of the sale could carry such weight as to work a fraud on Turner and Knight, or either of them. 4. If Stewart had purchased the property himself, his title would have been good as against Turner and Knight. It does not appear that Stewart was acting in concert with Turner and Knight, or that any purchase made by him was to inure to their benefit. Hence the allegation that Stewart was induced to refrain from bidding by Adams, whatever injury it might bring upon Buchanan, could not work a fraud upon Turner and Knight.

E. A. Lewis, and McKee & Buckner, for defendants in error.

I. Where a purchaser at sheriff's sale, by unfair practices, manages to get the property at a price far below its value, any creditor having a matured lien upon the property may have the sale declared null. A mere attaching creditor may have no such right, because the whole force of his attachment is contingent upon success in prosecuting his suit to judgment, and he therefore occupies no better position than that of any general creditor. But no such reasoning can apply to the judgment creditor, whose lien is fixed and final. Still less is it applicable to one who has a special fieri facias against the very property under consideration. (Martin v. Michael, 23 Mo. 50; Hadden v. Spader, 20 Johns. 555.)

II. The second alleged cause of demurrer does not truly represent the allegations in the petition. It does distinctly appear that the defendant made the false representations to the sheriff and others for the specific purpose of having them conveyed to plaintiffs' agent and other intending bidders; that they were so conveyed, and operated to the effect for which they were designed. The defendant is just as responsible for their consequences as if they had been made by him directly to the plaintiffs or their agent. (Stewart v. Nelson, 25 Mo. 309.)

III. If no other cause of action appeared in the petition, there was enough to sustain it against the demurrer, in the allegation that the defendant bought off the bidder, David Stewart, before the sale. (Wooton v. Hinkle, 20 Mo. 290; Neal v. Stone, id. 294; Stewart v. Nelson, 25 Mo. 309; Martin v. Michael, 23 Mo. 50; Abbey v. Dewey, 25 Penn. St. 413; Mills v. Rogers, 2 Littell, 217; Hadden v. Spader, 20 Johns. 555; Potts v. Blackwell, 3 Jones' Eq., N. C., 449; Hendricks v. Robinson, 2 Johns. Ch. 283; McDermott v. Strong, 4 Johns. Ch. 608; Williams v. Brown, id. 682.)

WAGNER, Judge, delivered the opinion of the court.

The allegations in the petition are that on the 23d of March, 1860, a judgment was rendered in the Lincoln County Circuit Court in favor of Milroy and Bacon against defendant Adams, T. G. Buchanan, and others, for $259.05; that Buchanan being largely indebted, writs of attachment, at the suit of plaintiffs and other creditors, were placed in the sheriff's hands on the first of February, 1862, and were levied on a tract of land containing about 233 24/100 acres, and worth at least $3,000; that in September, 1863, judgments were rendered in said attachment suits as follows: in favor of plaintiffs for $2,664.50; in favor of one of the plaintiffs, Thos. Turner, for $423.35, and in favor of Henry J. Pollard for $914.36, with costs in each case. Special executions were issued against the attached property under the Milroy and Bacon judgment, which antedated the attachments. The attached land was advertised by the sheriff to be sold on the 20th day of March, 1862. Prior to the day of sale, but after the levying of the attachments mentioned, one David Stewart also sued out an attachment against Buchanan, and had it levied upon the same land. The petition also alleged that on the day of sale, plaintiffs, by their agent, and the said David Stewart in person, were present intending to bid the land up to something like its value, so that they might realize satisfaction, in whole or in part, of their respective demands; that defendant, who was a co-defendant in the Milroy and Bacon judgment, caused it to be understood and given out by the sheriff and other persons, that he intended to pay off that judgment, or else would have the sale postponed until the next term of court; that this...