Wilchinsky v. Cavender

72 Mo. 192

• Court: Supreme Court of Missouri
• Decided: October 15, 1880
• Status: Published

Opinion

Napton, J.

We have been unable to distinguish this ease from that of McLean v. Martin, 45 Mo. 393. In that ease it was held that the doctrine of caveat emptor had no application where a mistake was made both by the sheriff and the purchaser, in selling a tract of land to which defendant in the execution had no title, and that as the consideration for the money paid on the execution had failed and gone to extinguish the judgment against defendant, plaintiff' was entitled to recover it back from the defendant in the execution. In this case the mistake was discovered, but not till after the money was paid and the sheriff had paid it over. In that ease the mistake was not discovered till the purchaser had taken possession and made improvements ; but the principle is the same, and as that decision was made upon a full review of the authorities, both here and in other states, we see no reason to disturb it. The judgment must, therefore, be reversed and the cause remanded.

The other judges concur.