Citation. 22 Ill.374 S.W.2d 119 (Mo. 1963)
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Brief Fact Summary.
The Defendant, Brookshire/Miller (Defendant) appealed from affirmation of a sheriff’s execution and sale which sold the Defendant’s $50,000 property to satisfy a $2,000 judgment.
Synopsis of Rule of Law.
A judgment debtor is to be afforded reasonable protection in levying on and selling his property under execution.
The Plaintiff, Griggs (Plaintiff), purchased a 322 acre farm for $20,600 at a public sale under a general execution against the Defendant. The Plaintiff sued the Defendant in ejectment for withholding possession of the farm and for damages. The Defendant’s answer was a general denial and he counterclaimed to set aside the sheriff’s execution sale and deed. The court found for the Plaintiff and assessed $2,483.24 in damages for the Defendant’s withholding of the farm. The decree also stated that the Plaintiff would recover $250 a month from the date of the judgment for so long as the Defendant withheld the farm from the Plaintiff. Miller replaced Brookshire as party-litigant Defendant after Brookshire was incarcerated.
Ray Crouch recovered a $1,966.69 judgment from the Defendant Brookshire. A general execution was issued on the date of that judgment to the Sheriff. The Sheriff levied the 322 acre farm and filed notice of the levy on December 14, 1960. On January 11, 1961, the Defendant wrote to the Sheriff limiting the property to be sold. The Sheriff advertised and sold all the real estate at the public sale on January 16, 1961.
Dorothy Constable recovered a $17,000 judgment against the Defendant Brookshire on July 29, 1960. A general execution was issued to the Sheriff on January 10, 1961 and he levied upon the Defendant’s 322 acres on January 11, 1961. The Defendant asserted that the selling of his farm was in error.
Whether it was error to sell the Defendant’s entire 322 acre farm without attempting to make the judgment debt, interest and costs out of a portion of the farm.
Yes. Defendant is entitled to relief upon his performance of equity. The sheriff’s sale and sheriff’s deed made to Plaintiff was canceled. The Defendant had thirty days to deposit in court the sum of $20,600.
Missouri Civil Rule 76.21 stated that if a judgment debtor gives the officer a list of his property sufficient to satisfy the execution, then the officer shall levy upon the property and no other, if in his opinion, it is sufficient. If not, then the officer will levy upon additional property as shall be sufficient. Civil Rule 76.24 further stated that when an execution is levied upon real estate, the officer levying it shall divide the property and if so, sell as much of it as necessary to satisfy the judgment, unless the debtor desires the whole tract of land or lot to be sold together. The general rule, therefore, was that the execution officer could make a division of the property and if practicable, sell only as much of it as necessary to satisfy the judgment.
A sheriff conducting an execution sale is the agent of the property owner and the judgment creditor and his duty is to protect the interests of both and to see that the property is not sacrificed. The Sheriff had testified that he did not know that it was illegal to sell $50,000 worth of property to satisfy a $2,000 judgment. The court noted that the property could have and should have been offered for sale in parcels. There was so great a disparity between the fair market value of the property and the bid price of $2,000, that the execution sale and sheriff’s deed had to be set aside.