Benz v. Hines

By the Coxvrt, Bailey, J. This was an action commenced Oct. 21th, 1861, in the District Conrt of the county of Leavenworth, by the defendant in error, (plaintiff below,) to recover of the plaintiff in error, (defendant below,) the south-west quarter of the south-east quarter of section thirty-five, township eight, of range twenty-two, and the damage for the detention thereof. The answer of defendant below, contained a denial of the allegation of the petition of plaintiff below, except it admitted that.the plaintiff was in possession of the premises. The issue was tried at the May term, A. D. 1865, before the court and a jury. On the trial the plaintiff below offered in evidence an execution issued pursuant to and reciting a judgment of said court as rendered November 19, 1863, in an action wherein Nelson McCracken was plaintiff and the defendant in error and others were defendants, and the return thereon of “no goods,” and showing a levy on the 17th day ot February, A. D. 1864, on the property in question as the property of plaintiff in error, and the advertising and sale thereof on the 9th day of April 1861, to Thomas Patterson for $600. Evidence was also introduced, under objection, of the record of the court in that case, of the petition, final judgment, motion to confirm said sale as to the whole of the land, and the motion of defendant below to set aside the sale, and of the order of the court confirming the sale, and a sheriff’s deed for the whole tract. A deed from Patterson dated April 12th 1864, to plaintiffs below was also read in evidence. [396] On the part of the defendant below the attention of the court below was called to the decision of this court, that said sale was void as to a homestead of one acre, reversing said order of confirmation as to such homestead. Benz v. Rawlston Mss., Jan. term 1865. The defendant below then offered to prove that plaintiffs below fraudulently prevented competition at said sale, and that such fraud was not discovered until after the order of confirmation. The court refused to allow any testimony to be introduced, tending to impeach the validity of the sale. At request of plaintiffs below, the court gave certain in» structions to the jury and refused to give certain others asked by the defendant below. The instructions asked by the plaintiffs below and given to the jury by the court, and those asked by the defendant below, and by the court refused, alike involved the question whether the evidence, the sheriff’s deed and the order of confirmation by the court below, as modified by the decision of this court, sufficiently identified what part of the tract of land in controversy constituted the homestead, and what part was included in the order of confirmation as modified. The instruction given, was to the effect that the jury “ must find for the plaintiffs, and that they are the owners of and entitled to the possession of the south-west quarter of the south-east quarter of section number thirty-five in township number eight, in range number twenty-two, excepting the one acre thereof occupied by defendant as a homestead, and assess the damages,” &c. The jury under the instructions found for the plaintiffs below, and that they are the owners of and entitled to the possession of the land, describing it as in the instruction given, and assessed their damages for detention. The defendant below made a motion for a new trial, which was overruled. On exceptions to these rulings the case is brought to this court. The record in this case fairly raises the question whether [397] the order confirming the sale under an execution, of the land in question, is res judicata in an action to recover the land founded on such sale as to preclude the introduction of testimony to show that the plaintiff in the execution, used fraudulent means on said sale, in preventing competition among the bidders. The court in exercising the power conferred upon it by the 449th section of the Code, should either set aside or confirm a sale made, and has no power to modify its terms. 10 Ohio St., 556. It has been the unanimous opinion of this court that any fraudulent conduct of the officer, or a combination between the judgment creditors and a third person to prevent competition, will invalidate a sale, and that those facts may be shown on a motion to set aside the sale. But it has been expressed as the opinion of this court, that a decision either way upon such a motion, would not affect the ultimate rights of the parties, nor be a bar to an action to determine which was the owner. White-Crow v. White-Wing, [ante, p. 276.] We are still of opinion that an order made pursuant to the section named, which confines the action of the court to the mere granting or refusing the order asked, without giving it power to modify, is not such a judgment as to be pleadable as res judicata, especially where the plea is interposed in a separate action, and where it is proposed to show such fraud in the proceedings upon which the former adjudication was founded, as would avoid it. In order to make a matter res judicata, there must be a concurrence of first, identity in the subject matter; second, of the cause of action ; third, of the persons and parties, and fourth, in the quality in the persons for or against whom the claim is made. 2 Bouvier, 465; 4 Mass., 245. In the case at bar the identity in the causes of action, fails. "We think the doctrine is not applicable generally, to motions in the course of practice, (5 Hill N. Y., 493,) except perhaps as to any other application on the same [398] state of facts, for a similar order. Banks v. The American Tract Society, 4 Sandf. Ch., 438. This determination will make a re-trial of the case necessary. The next question involved, likely to have a bearing upon future proceedings in the ease, is, whether the description of the property in the evidence adduced, was sufficiently definite. The same description is used in the charge of the court to the jury, and in their verdict as in the judgment. The plaintiff' in an action like the one at bar, is entitled to recover, if he shows paramount title to any part of the premises described in his petition, yet not without evidence of a sufficient interest to maintain the action in the definite tract for which the judgment is rendered. In this case the evidence consisted of an execution and levy on, the sale, and an order confirming such sale, of the whole tract described in the petition, and the sheriff’s deed for the same. That deed, order of confirmation and sale were void as to an undefined portion of the tract, consisting of the homestead of one acre, occupied by the plaintiff in error. Nothing appears to identify the acre or determine its shape, except that it was an acre occupied by the defendant (below,) as a homestead. He is shown to have been in the possession of the whole tract. Something more definite as to the location and form of the precise acre constituting the homestead, should have appeared. But as to whose duty it was to make it appear, we forbear to determine, because had either party made it appear what precise acre of' the tract was by the defendant below occupied as a homestead, it would have been sufficient to sustain a verdict for the residue, had the evidence been sufficient in other respects. No other question likely to arise on a rehearing of the case seems to be involved. The judgment below is reversed for error in the court in rejecting evidence of the plaintiff in error tending to show fraud in the sale.