Wimer v. Obear

• Decision Date: 31 March 1856
• Citation: 23 Mo. 242
• Parties: WIMER, Plaintiff in Error, v. OBEAR AND MASON, Defendants in Error.
• Court: Missouri Supreme Court

23 Mo. 242

WIMER, Plaintiff in Error,

v.OBEAR AND MASON, Defendants in Error.

Supreme Court of Missouri.

March Term, 1856.

1. Section 42 of the “act to regulate executions,” (R. C. 1845, p. 483,) which provides that if the purchaser “refuse to pay the amount bid by him for property struck off to him, the officer making the sale may again sell such property at any time to the highest bidder; and if any loss shall be occasioned thereby, the officer shall recover the amount of such loss, with costs, by motion before any court,” &c., does not authorize a judgment on motion against one who has been substituted in the place of the purchaser at the sale, with the consent of such purchaser, and who has been reported as the purchaser by the sheriff; this summary remedy by motion can be had only against the actual purchaser at the sale.

2. Quere: whether this section embraces a sale in partition.

Error to St. Louis Circuit Court.

This was a motion made by John M. Wimer, late sheriff of St. Louis county, for judgment against J. H. Obear and E. R. Mason, for the sum of $915.30, the amount of loss alleged to have been occasioned by their refusal to pay the sum bid by them at a sale of certain lands made by said Wimer as sheriff of St. Louis county, under an order of the Circuit Court, in a suit in partition. Among other matters that it is unnecessary to set forth, it appeared upon the trial of the issues raised by the answer of defendants, that the land was struck off at the sheriff's sale, under an order of court in a suit in partition, to one Rudolph Bircher; that defendants, Obear and Mason, were not present at the sale; that Bircher afterwards sold the right acquired by him by his purchase to defendants for $50; and that at the request of Bircher, Obear and Mason, the sheriff substituted Obear and Mason as the purchasers in the place of Bircher, and reported them as the purchasers.

The court gave judgment for defendants. Plaintiff duly excepted.

S. H. Gardner and Richardson, for plaintiff in error.

M. L. Gray, for defendant in error.

SCOTT, Judge, delivered the opinion of the court.

As we are of the opinion that the defendants are not liable in this proceeding, we deem it unnecessary to examine the question, whether a sale in partition is within the 42d section of the law regulating executions, on which this motion is founded, and which enacts “that if the purchaser refuse to pay the amount bid by him for property struck off to him, the officer making the sale may again sell such property...