11 Mo. App. 226 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This is an action of ejectment. The plaintiff had judgment in the circuit court, and the defendants appeal. The defendant Walker claimed the property as owner, and the defendant Creeley was his tenant. There was a third defendant, Anderson,but the suit was dismissed as to him. The-plaintiff claims title to the property in controversy by virtue-of a sheriff’s deed executed and delivered to him as purchaser at a sheriff’s sale, under a special execution issued in pursuance of a judgment rendered in the circuit court of the city of St. Louis, against the defendant Walker and the-property in controversy, under the act of April 12, 1877,. known as the ‘ ‘ Back-Tax Law.” The proceedings which resulted in this sale appear to have been taken, in all respects, in strict conformity with the statute, save as to an alleged irregularity in the description of the property itself. This-irregularity, if it be such, runs through the whole proceedings, and it is this : In the petition in the back-tax suit, in the order of publication thereupon, in the publication as-
The position of the defendants’ counsel, as we understand it, is, first, that the circuit court of the city of St. Louis had no jurisdiction to render the judgment, because it appears -that the proceeding was instituted to enforce a single assessment and levy of taxes against two lots, or, what is equivalent to the same, against one lot and part of another lot; whereas, the act of 1872 requires a separate assessment and .levy of taxes against each lot, and the act of 1877 contemplates a separate proceeding against each lot or portion of .a lot. If we rightly understand the defendants’ counsel, they also claim that, by reason of the vagueness and uncertainty in the description of the property in the petition, the circuit court acquired no jurisdiction at all to proceed in the case. But, aside from this, it is claimed that the sheriff had no power to sell the lot in question and the part of another lot in a lump, under a single judgment and levy for taxek, and that for this reason his deed is void. It is also ■contended that the sheriff’s deed does not contain a description of the property which it attempts to convey to the plaintiff of sufficient certainty that it can be identified. ?
In our opinion, none of these positions are well taken. We will state and consider them separately, as we understand them. 1. Was the judgment against Walker in the back-tax suit void for want of jurisdiction? The defendants’ counsel contend that it was, and they base their contention on the doctrine that, although the circuit court is a court of general jurisdiction, yet when it proceeds to exercise a special power created by statute, in a summary
We have then to consider whether a suit brought in the circuit court to collect delinquent taxes under the act of April 12, 1877, is a suit in which the circuit court exercises the jurisdiction conferred by that statute in the way it exercises its ordinary jurisdiction, or in a special or summary manner, in derogation of the common law. There can be no doubt whatever as to how this question must be answered. There is no difference whatever between such a proceeding and an ordinary suit in the circuit court, commenced, in case of resident defendants, by summons, and in case of non-resident defendants, by attachment and publication. The same incidents attend the progress of such a
The inquiry, then, is not, whether it affirmatively appears from the record put in evidence in this case, that the circuit court had jurisdiction in the back-tax suit, but, whether it affirmatively appears from this record that, it had no such jurisdiction. What affirmative fact is shown by the record in the back-tax suit which constitutes such a material departure from the terms prescribed by the statute as to oust the court of 'its jurisdiction? Is it that there was a proceeding and judgment for a single levy against two distinct parcels collectively, whereas a separate proceeding should have been taken against each, though in the same suit, and the judgment should have ascertained the amount chargeable against each, and that each should have been separately sold for the amount so charged against it? If objection for this reason had been properly made in the back-tax suit, and it had there sufficiently appeared that lot 38 and the west part of lot 37 of the Wash Estate Addition to the city of St. Louis were in fact to be treated as two separate lots or parcels, then a single judgment charging them collectively as one tract with a lien for a single sum, would undoubtedly have been erroneous. The State ex rel. v. Kerr, 8 Mo. App. 125; The State ex rel. v. Bridge Co., 8 Mo. App. 599. But that would have been an objection going, not to the jurisdiction, but to the regularity of the proceedings. This is perfectly obvious, when it is considered that if the obliga
Then, as we gather the defendants’ positions from their brief, they claim that the description of the land — which, as before stated, runs through all the proceedings — is-so indefinite as to make the judgment itself void for uncertainty, or possibly, for want of jurisdiction. A proceeding against a non-resident under the back-tax law of 1877, is somewhat analogous to a proceeding by foreign attachment where
We concede, for the purposes of the present case, that the same rule ought to apply here. But we do not think there is any such ambiguity in the description of the property proceeded against in the back-tax suit in this case as brings it within the rule. The rule itself is very well settled. If the land granted be so inaccurately described as to render its identity wholly uncertain, then it is admitted that the grant is-Void. Boardman v. Reed, 6 Pet. 328. But, to have this effect, the ambiguity must be patent and appear on the face of the instrument; the uncertainty must not appear by matter outside. Hardy v. Matthews, 38 Mo. 121; Campbell v. Johnson, 44 Mo. 250. “There is nothing technical,” said Bliss, J., “in this matter of description. As land cannot be bodily delivered, it can pass only by such description as will identify it; and if a deed contains anything, whatever the style, that will enable one to do so, it is so far good. It is not necessary that this description be contained in the body of the-deed; but if it refers, for identification, to some other instrument or document, as to another deed, or map, it is sufficient. Or, if no reference be made, surveys, monuments, etc., must be ascertained in order to locate the land. But while there is no technical rule in regard to the description, and the intention of the parties governs, it must be contained in the instrument or its references, expressed or implied with such
This also disposes of the objection that the description of the property contained in the sheriff’s deed rendered that
The objection that the sheriff sold the two parcels of ground together, as one lot, is one that cannot be taken in this collateral proceeding. In a case on all fours with this, it was held that the neglect of the sheriff to sell the land by the smallest legal subdivisions did not invalidate the sale. The defendant might, on motion, have set it aside for failure of the sheriff to comply with the direction of the statute, but he could not wait till an action of ejectment had been brought against him by the purchaser and then set it up as a defence to such action. Wellshear v. Kelley, 69 Mo. 343, 355.
The judgment is a joint one against both defendants, one of them landlord and the other tenant, for possession of the property and for rents and profits. We see no error in this. The action of ejectment is a possessory action. In theory of the law both defendants are wrong-doers. The action, under the statute, is properly brought against the person in possession (Rev. Stats., sect. 2242), and the judgment is properly rendered for the recovery of the premises and for rents and profits. Rev. Stats., sect. 2255. If this works a hardship to a person holding- merely as a tenant, he may protect himself by surrendering possession to the plaintiff in ejectment as soon as the claim of the latter is made known to him. Rev. Stats., sect. 2252. See Tyler on Eject. 841.
The judgment is accordingly affirmed.