Wiley v. Robert

• Citation: 27 Mo. 388
• Parties: WILEY, Respondent, v. ROBERT, Appellant.
• Decision Date: 31 October 1858
• Court: United States State Supreme Court of Missouri

27 Mo. 388

WILEY, Respondent,

v.ROBERT, Appellant.

Supreme Court of Missouri.

October Term, 1858.

1. A sheriff's sale of real estate is within the statute of frauds, and a note or memorandum thereof in writing must be made to bind the parties.

2. A memorandum made by a deputy sheriff, and signed by him, of a sale of one of several lots in a partition proceeding, in which Louis Robert and others were plaintiffs, and one B. T. Adams defendant, was as follows: “Partition, Lands--Louis Robert v. B. T. Adams--Lot No. 11--274 80-100 a.--Louis Robert-- $10.50 per a.--$2,885.40.” Held, that this memorandum was sufficient to take the case out of the statute of frauds.

3. The sheriff can, in such case, maintain an action in his own name against the purchaser for the purchase money, although the latter may not have given a note therefor to the sheriff.

4. Where a sale in partition proceedings is made, and the land embraced in the suit is bid off by one of the parties, the purchaser cannot, by any agreement with any of the parties to the suit with respect to the land and the payment of the purchase money, affect the right of the sheriff to collect of such purchaser his lawful fees, or enough of the purchase money to pay the costs and the portions of the purchase money belonging to those parties, if any, who do not enter into any agreement in the nature of a release with the purchaser.

Appeal from Jefferson Circuit Court.

This was an action brought by the sheriff of Jefferson county to recover from Louis Robert the amount bid by him for a certain tract of land at a sale in a partition proceeding, in which said Robert and others were plaintiffs, and B. T. Adams defendant. The defendant denied in his answer that a memorandum in writing of the alleged sale had been made by any one lawfully authorized. The defendant also set up that after said sale it was agreed between the plaintiff in said partition suit and the defendant therein, Adams, that the latter should keep the land and compromise upon a price to be agreed upon; that Adams retained possession of said land; that plaintiff had not disturbed him, and was ready to carry out the agreement when Adams should require. This portion of the answer was stricken out on motion of plaintiff. The answer also set up that under the judgment in the partition proceeding defendant was entitled to one-fifth of the purchase money. The court refused to declare the law as follows, as asked by defendant: “The contract, as set out in the petition, and as shown by the proof, not being in writing, nor any note or memorandum thereof, signed by the defendant, nor by some person by him lawfully authorized, is void, and the plaintiff cannot recover.”

The court found for plaintiff, and gave judgment against defendant for the amount bid by him, with interest, etc.

Whittelsey and Pipkin, for appellant.

I. There was no sufficient memorandum of the sale, so as to give the sheriff a right to enforce a specific performance of the contract. A sheriff's sale is within the statute of frauds. (2 Johns. 248; 8 Johns. 520, §47; 3 Blackf. 472, 8 Blackf. 105; 8 Mo. 177; 2 Camp. 203; 5 B. & Ald. 333.) The terms of sale are not given. The lot bought is not sufficiently described. (3 Duer, 395; 1 Johns. 273; 14 Johns. 15; 7 East, 558; 16 Wend. 130; 7 Mo. 389.) The sheriff cannot maintain an action for specific performance of a contract for the purchase of real estate. He has no such possession nor interest as will authorize an action. (10 Johns. 387.) The damages were excessive. The sheriff was entitled only to the interest he had-- commissions and costs. One-fifth of the purchase money belonged to defendant. The court erred in striking out that portion of the answer setting up the agreement with Adams. (7 Mo. 569; 11 Mo. 659; 20 Mo. 81.)

Frissell and Green, for respondent.

I. The statute of frauds does not apply to sheriff's sales. If it does, the memorandum in this case is sufficient. Besides, the defendant does not deny the sale to himself nor his bid. (See Smith on Contracts, 36; Sugd. on Vend. 133; Hilliard on Sales, 185.)

RICHARDSON, Judge, delivered the opinion of the court.

A sheriff's sale of real estate is within the statute of frauds, and a note or memorandum thereof must be made to bind the parties. (Evans v. Ashley, 8 Mo. 177.) We think, however, that the memorandum made by the deputy sheriff in this case was sufficient for that purpose. The deputy states that the sheriff handed to him the advertisement and copy of the order of sale in the partition suit of Robert v. Adams, and directed him to proceed with the sale; that he acted as clerk, and Johnson as auctioneer; that the advertisement was first read, and then the land was put up in parcels, and as it was...