Stephens v. Ells

Napton, J. The only question in this case, relates to the effect of a purchase, at a partition sale of land under a decree of court, when the buyer is one of the part owners. There is no doubt that partition sales, like other judicial sales, carry no warranty with them, and that the maxim of caoeat emptor applies to the purchaser. This was decided in Owsley v. Smith (14 Mo. 153), and subsequently in Schwartz v. Dryden (25 Mo. 572), and in Matlock v. Bigby (34 Mo. 354); and in 1870, in the case of Cashion v. Faina, (47 Mo. 133), Judge Wagner says: “The simple question, then, presented, arises upon the construction of our statute as to whether a sale in partition imports a warranty of title. This question has been before this court on several occasions, and it has always been decided that there was no warranty in such cases; that the deed executed. conveyed the interest, whatever it might be, of the parties to the proceeding, and was a bar against them and all persons claiming under them. * * * It is only necessary to say that these decisions have established the law in this state and that we acknowledge them binding authority, and cannot consent to re-open the question.” That this decision of our court is not singular or peculiar, will be seen by reference to the authorities cited in Rorer on Judicial Sales, where it is asserted that “ In the Monte Allegre (9 Wheat. 616) this rule is plainly asserted by the [461] Supreme Court of the United States, and is the general doctrine in most, if not all, of the states and of the common law.” Rofer on Judicial Sales, §§ 458, 459. A purchase by a stranger, at a judicial sale of this character would be governed by the rule of caveat emptor, and would be a purchase of the title sold, subject to any incumbrances previously created by the owner. The question in this case is, whether, where a part owner buys, he occupies any different^osition from a stranger, to the title. One would naturally suppose that the part owner would be more likely to know the amount of the incumbrances on the land than a stranger, and that his bid would be governed by his knowledge of these facts. He would, of course, bid only what he supposed the land was worth over and above the incumbrances on it, with the amount of which he would necessarily be familiar. The judicial sale severs the co-tenancy. If the co-tenant purchases at such sale, and is allowed to re-assume his relation of co-tenant, after its severance brought about by his own application, for the purpose of calling on his co-tenants to contribute their share to extinguish incumbrances, it is obvious that his purchase gives him great advantages over other purchasers and places his co-tenants, who decline or are unable to bid, under great disadvantages. We assume that his bid, as that of a stranger must be, was for the title as it was at the date of the sale. All the world is invited to bid, and among others the co-tenants, or any one of them. A bid from one of them occupies the same footing as a bid from a stranger. The payment of money to remove a tax or other lien by the co-tenant during the tenancy, or the expenditure of money to preserve*the common property, presents entirely different considerations. And so in regard to voluntary partitions. Jones v. Stanton, 11 Mo. 433; Picot v. Page, 26 Mo. 399. Whether these voluntary expenditures afford a ground for contribution in favor of one co-tenant against another, as an affirmative cause of action against the con [462] tributing tenant, in the absence of any previous authorization or subsequent ratification, or must be held, simply as a lien against the property, is a point upon Which no opinion is necessary to be expressed. It is sufficient to say that in this case the payment was made after the co-tenancy ceased, and was made by the co-tenant in the character of purchaser at the judicial sale in partition. The judgment is affirmed. The other judges concur. Affirmed.