Magwire v. Marks

NaptoN, Judge, delivered the opinion of the court. The twentieth section of the eighth article of the act to regulate proceedings in justices’ courts is an important modification of the law governing execution sales. Occurring, as it does, in the act which relates to justices’ courts only, it may be presumed that it was only designed to apply to executions issuing from these inferior tribunals, yet its language is broad enough to include all kinds of executions; and it is not very apparent what motive could have induced the legislature to introduce the remedy therein provided in one class of executions more than in another. The doctrine of caveat emptor is not abolished by this section so far as purchasers at execution sales are concerned; but a consequence, which has been drawn from this doctrine, exempting execution debtors from all responsibility to purchasers at such sales when their title has failed, is distinctly repudiated. The principle might have been applied with great propriety to all executions, from whatever quarter they might emanate ; and it seems to be the result of oversight or accident that the provision is found where it is, instead of in the act regulating executions generally. The case of Heath v. Daggett, 21 Mo. 69, is not reconcilable with a strict application of the maxim of caveat emptor to execution sales. The return of the sheriff was in that case not held to estop him from showing that the property levied on and sold was not in fact the property of the defendant in the execution; and therein the decision was totally at variance with the case of [197] Curtis v. Bennett, 11 Humph. 295, which has been cited in behalf of the defendant in this case. The facts of this case are, that the plaintiff has received no benefit from any thing which has been done under this execution, and the defendant has received no injury; that the plaintiff has obtained no money, and the defendant has lost none ; that both parties are in statu quo before the levy. To hold that the plaintiff is estopped from showing this because of the return of the sheriff, which shows the collection of nearly all the money called for by the execution, can only be justified by regarding the plaintiff as bound by the levy and sales which he ordered, however fruitless their results might prove. This would have the appearance of inflicting a penalty upon him for taking a course which he is expressly authorized to take by the statute, and for the consequences of which to others he has become responsible under the provisions of the statute by giving ample bond and security. These consequences the plaintiff has already submitted to in the shape of damages recovered in another suit; and to add to them the loss of his claim against the defendant in the execution, not one cent of which has been paid, would certainly be a harsh construction of the law. Undoubtedly the rule of caveat emptor is the settled rule in this state so far as purchasers under execution are concernd; and if the rule, by its implication, necessarily embraces the defendant in the execution, the plaintiff and the sheriff — as was held in the cases of Valter v. Lytle’s Adm’r, 6 Hamm. 482, and Perry v. Williams, Dudley, 46 — the application of Magwire to have the return corrected could not be granted. But the section of the statute to which we have referred shows the intention of the legislature not to extend the operation of this principle to the defendant in the execution, and, taken in connection with the decision in Heath v. Daggett, seems to warrant the conclusion to which with some hesitation we have arrived in the face of respectable authorities to the contrary. We shall permit the sheriff’s return to be amended. The judgment is reversed and the cause remanded; the other judges concur.