Griggs v. Miller

Supreme Court of Missouri, Division No. 2 · 1964 · Civil Procedure

374 S.W.2d 119 (1964)

Updated July 29, 2026

Civil ProcedureExecution salesEjectmentEquitable reliefexecutionsheriff's saledivision of real estateconstructive levy

Facts

Griggs bought Brookshire's 322-acre Boone County farm at a sheriff's execution sale for $20,600 under a Henry County judgment of about $2,308.16 including interest and costs. Before the sale, Brookshire notified the sheriff in writing that one identified 40-acre parcel was enough to satisfy the judgment and objected that the whole farm should not be sold, while the sheriff knew Brookshire also had cattle and other assets that could have satisfied the debt. The farm, which all agreed could be divided into parcels, was not divided and was never advertised for sale under a second Audrain County execution, even though the sheriff later distributed most of the sale proceeds to satisfy that second judgment. The trial court upheld the sale and awarded Griggs possession and damages, and Brookshire's trustee appealed.

Issue

Whether the execution sale and sheriff's deed were valid when the sheriff sold the entire 322-acre farm without dividing it, despite the property's susceptibility to division and the small amount of the advertised execution, and when the farm had not been advertised for sale under the second execution whose judgment was also paid from the proceeds. Also at issue was the proper equitable relief if the sale was set aside.

Rule

When an execution is levied on real estate, the officer must divide the property if it is susceptible of division and sell only so much as is sufficient to satisfy the execution, unless the debtor desires the whole tract sold together. Receipt of a second execution creates a constructive levy on property already held under the first writ, but it does not authorize a sale under the second execution without the required advertisement or justify selling more land than would be proper under the advertised execution. A judgment debtor who seeks to set aside such a sale must do equity by restoring the purchase money and other sums properly expended for the property's benefit.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Greene County, Missouri, a sheriff levied on Dana Holloway's 160-acre tract to satisfy an advertised execution for $3,400. The tract consists of four separate 40-acre parcels of roughly equal access and value, and three days before the sale Dana delivered a written notice directing the sheriff to sell the northwest 40 first because it would cover the debt.

If the sheriff nonetheless sells the entire 160 acres as a single unit, which is the strongest argument for setting the sale aside?

Explanation. The governing rule is that when an execution is levied on real estate, the officer must divide the property if it is susceptible of division and sell only so much as will satisfy the execution, unless the debtor wants the whole tract sold together. Dana's written election reinforced that only one 40-acre parcel should be sold first. Selling the entire tract despite divisibility and a small execution is the irregularity supporting equitable relief.