Schwartz v. Dryden

Napton, Judge, delivered the opinion of the court. In the case of Owsley et al. v. Smith’s heirs, 14 Mo. 153, this court held that in partition sales under our statute there was no warranty of title. This decision is based upon the particular phraseology of our statute, and seems to have been acquiesced in. No case has been brought up to this court, since that decision, in which the court has been asked to review the subject; nor is it attempted in this case. Regarding this point as settled, the plaintiff, who was the purchaser of a lot in Palmyra at a partition sale made by a commissioner, applies to the court to set aside so much of the sale as included a part' of the premises he purchased to which it turned out there was no title in the parties to the partition. It seems that the sale was made upon the premises ,* that a portion of the lot was covered by a graveyard; that inquiry was publicly made whether this portion of the lot had ever been conveyed away by the ancestor of the petitioners; and that the commissioner publicly stated “ he did not know; that he had not examined the records; that he only offered to sell whatever title the petitioners might have in the lot.” It is not doubted that where fraud or misrepresentation has occurred, or where the purchaser has been led into a mistake by the conduct of the seller, a court has ample authority, at all events previous to a confirmation of the report, to set aside the sale. No fraud or misrepresentation is alleged in this case, and the circumstances show that if the purchaser was led into mistake, it was not superinduced by the conduct of the commissioner or the petitioners, but resulted from the grossest negligence of his own. The graveyard was visible, and the subject was inquired into. The deed which had conveyed it was upon record, and the commissioner stated that he had not examined the record. Whether, under these -circumstances, the portion of the lot thus covered with graves was regarded as of any value by the purchaser when he made his bid would not seem very clear. But if the court is justified in setting aside the sale at all, it ought, under such [575] circumstances, be set aside altogether. It may be that the portion of the lot to which there was good title was worth, and would have brought, the full amount of the bid. But the purchaser does not ask this ; he desires simply a pro rata deduction from his bid. This can not be allowed; for, although he may be injured, that injury is plainly the result of his own negligence and not brought about by the conduct of others. Judge Richardson concurring, the judgment is affirmed.