State ex rel. Bender v. Spencer

Ellison, J. It appears that at the execution sale relator bought several pieces at prices aggregating one thousand and seventy-nine dollars, on which he paid $331.35; that the total sales amounted to forty-six hundred and thirty-three dollars, excluding lots bid off by .Mosman .for three hundred and eighty dollars, or five [415] thousand and thirteen dollars including these lots. These lots were returned unsold by order of the attorney for the plaintiffs in the executions. Said sum of $331.35 was paid by relator on his purchase in February, 1878, and to recover this sum is the object of the first count, it being alleged that defendant refused either to make bim a deed to the property on which this sum was bid, or to return the money. The statute of limitations was pleaded by defendant. We think the claim is barred by the statute, which in cases of this kind is three years. The sale was October 31, 1877, payment was made in February, 1878, and the petition not filed till August, 1881. State ex rel. v. Spencer, 79 Mo. 314. When the payment was made he was entitled to his deed or an immediate return of his money, if a deed could not for any reason be made, and his cause of action accrued at that time. The second count is based on relator’s ownership of the junior judgment and being entitled to the balance of the proceeds of sales after satisfying the senior judgment and the costs in both cases- The claim is really made up in part by the three hundred and eighty dollars, the amount bid by Mosman, the attorney for plaintiffs in the executions, on a portion of the property, which was by Mosman ordered returned unsold. The transaction in this regard was properly covered by instruction number two for defendant, and the court must have found against plaintiff on that part of the claim. The claim is also made up, in part, by counting the senior judgment at six per cent, instead of ten, as endorsed on the execution. The sheriff had a right to consider the senior judgment as drawing ten per cent, from the fact that the execution was so endorsed. He is protected in this respect by his writ. It is true the court on motion afterwards declared the senior judgment only drew six per cent, but prior to this the sheriff had made his return and disbursed the money realized. On the whole case we see no ground for disturbing' the judgment of the lower court and it is, therefore, affirmed. Philips, P. J., concurs; Hall, J., not sitting.