Hicks & Hammond v. Perry, 7 Mo. 346

Opinion of the Court, delivered by Scott, Judge. An execution was issued from the circuit court of Washington county, against John G. Scott, John Perry, and Joseph M. Stephenson, for the sum of $318 07$, directed to the sheriff of Jefferson county. Under this execution, the sheriff, Hammond, levied on two tracts of land, containing, together, 204 acres, in each of which, Scott was entitled to an undivided half, although doubts were entertained as to the extent of his interest.

After advertising that the lands would be sold between the hours of nine and ten o’clock, of the day appointed for the sale, the sheriff on that day, during the session of the circuit court, sold the two tracts together, and not in parcels, for the sum of five dollars, there being no higher bid; Hicks was the purchaser.

Under this state of facts, John Perry, one of the defen d-ants in the execution, and who, it appears, is a mere security for Scott, moved the court to set aside the sale, on the ground of irregularity; and alleged as a further cause, that there was fraud and collusion between Hammond and Hicks: all fraud and collusion between the appellants, was expressly denied, and there was no evidence of its existence. The court set aside the sale, and the cause is brought here by appeal. The land sold was the property of Scott.

There is no allegation that he is unable to pay his debts, or that he is colluding with the appellants, nor is there any circumstance from which such a presumption can arise. Thisne-cessarily leads to the inquiry, why should Perry interfere in this matter? and had he even a right to does not the silence and acquiescence of Scott repel the charge that there was a sacrifice of the property. When more property is sold than is sufficient to satisfy a debt,‘and the property could have been sold in parcels, a court would set aside the sale.

This appears to be the meaning of the 26th sec. of the act concerning executions. In this case, the property sold did not pay the debt, and it does not appear that the biddings were affected by the circumstance, both tracts were sold together. We do not mean to <-j that a sheriff would be justified in offering at the same time, different tracts of land, whether contiguous to each other or not, where it appears that a diminished price was the conse. quence of such a mode of sale.

The law entrusts a with a discretion in conducting sales; he is the agent of both parties, and should dispose of the property in such a man-ñeras will promote the interest of both plaintiff and fendant. Had Scott, himself, complained, the sheriff should have been compelled to show, that by offering both tracts together he was not damnified. Ashe acquiesces-in the conduct of the sheriff, we do not think that the sale should have been set aside.

If the sheriff has sacrificed the property, the party aggrieved has his remedy by action against him. property sold by a execution, than is suffi-ihe pro-pgrtv could havebeensold courtwm set aside the sale moti¿n e^m ade whose lights g^g_tedl}y Judgment reversed.