Cashion v. Faina

Supreme Court of Missouri

Cashion v. Faina

47 Mo. 133

CourtSupreme Court of Missouri

DecidedOctober 15, 1870

StatusPublished

Cited by10 cases

This text of 47 Mo. 133 (Cashion v. Faina) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cashion v. Faina, 47 Mo. 133 (Mo. 1870).

Pincite

Opinion

Wagner,, Judge,

delivered the opinion of the court.

The defendant, at a sheriff’s sale in partition, purchased certain lands, and gave his promissory note for a part of the purchase money. Payment not being made at maturity, the sheriff brought this action to enforce the collection thereof. As a defense, the answer stated that there was a failure of consideration; that there was no title to one of the pieces of land purchased at the sale, and that the defendant had been evicted from its possession in an action regularly instituted in a court of competent jurisdiction ; that the other piece of land was valueless; and he asked for a cancellation of the note, and for judgment for the amount he had paid.

This answer was stricken out, on motion, as constituting no defense to the action, and the defendant failing to further answer, judgment was rendered for plaintiff, which was reversed in the District Court. The answer contains no averment, nor is it pretended, that there was any fraud, misrepresentation, or undue influence practiced at the sale. 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 proceedings, and was a bar against them and all [135]*135persons claiming under them. (Owsley v. Smith, 14 Mo. 153; Schwartz v. Dryden, 25 Mo. 572; Matlock v. Bigby, 34 Mo. 354.)

Without re-stating the reasons which led to these decisions, it is only necessary to say that they have established the law in this State, that we acknowledge their binding authority, and can not' consent to reopen the question. It follows, therefore, that the judgment of the District Court must be reversed and that of the Circuit Court affirmed.

The other judges concur.

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Wagner,, Judge,

delivered the opinion of the court.

The defendant, at a sheriff’s sale in partition, purchased certain lands, and gave his promissory note for a part of the purchase money. Payment not being made at maturity, the sheriff brought this action to enforce the collection thereof. As a defense, the answer stated that there was a failure of consideration; that there was no title to one of the pieces of land purchased at the sale, and that the defendant had been evicted from its possession in an action regularly instituted in a court of competent jurisdiction ; that the other piece of land was valueless; and he asked for a cancellation of the note, and for judgment for the amount he had paid.

This answer was stricken out, on motion, as constituting no defense to the action, and the defendant failing to further answer, judgment was rendered for plaintiff, which was reversed in the District Court. The answer contains no averment, nor is it pretended, that there was any fraud, misrepresentation, or undue influence practiced at the sale. 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 proceedings, and was a bar against them and all [135]*135persons claiming under them. (Owsley v. Smith, 14 Mo. 153; Schwartz v. Dryden, 25 Mo. 572; Matlock v. Bigby, 34 Mo. 354.)

Without re-stating the reasons which led to these decisions, it is only necessary to say that they have established the law in this State, that we acknowledge their binding authority, and can not' consent to reopen the question. It follows, therefore, that the judgment of the District Court must be reversed and that of the Circuit Court affirmed.

The other judges concur.

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47 Mo. 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cashion-v-faina-mo-1870.

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