Hays v. Perkins, 109 Mo. 102

Hays v. Perkins

109 Mo. 102 | Mo. | 1891

Black, J.

This is ejectment for lots 1, 2, 3, 4, 5, 7, 8, 9 and 10, in block 2, ¡and lots 1 and 6 in block 1, in Hays’ second railroad addition to the city of St. -Joseph. At the close of all the evidence the court gave an instruction that the plaintiff could not recover, and thereupon he took a nonsuit with leave. Though both parties claim title through Edward 0. Hays, it is necessary to go back a step or two.

William Noble devised the eighty acres of land hereafter mentioned, of which the lots in question are a part, to Levi Johnson. Johnson, by his guardian, brought suit in partition against certain persons, which suit resulted in a sale of the land. The sheriff, in selling the land, laid it off into lots and blocks, and Edward 0. Hays became the purchaser of “lot 5 in block 2, ■containing two and one-half acres, out of the south half of northeast quarter of section 20, in township 57, •range 35.” The deed to Hays bears date April 15, 1858. The plaintiff also put in evidence a deed from Levi Johnson to Edward O. Hays for the same lot, which deed sets out this additional description: “And more particularly described in the plat and map of :said south one-half of said land filed by the sheriff in his report of sale of land in case of Levi Johnson v. William Noble, lately pending,” etc. It is by these •deeds that Edward O. Hays acquired title.

On the second of March, 1868, Edward O. Hays signed and acknowledged a plat whereby he laid this two-and-a-half-acre lot off into lots, blocks and streets, :and called the same Hays’ second railroad addition to -St. Joseph.

The plat appears from the record before us to have been recorded on March 21, 1888, but this is probably a mistake in the record, and we shall treat it as having been recorded on March 21, 1868. It is said in the *106brief of the plaintiff that Edward 0. Hays conveyed the lots in suit to tbe plaintiff on March 21, 1868, but. we can find no evidence of such a conveyance in the-record. It does appear that he conveyed the lots in question to plaintiff by a deed dated the ninth of' November, 1889, which was but a few days before this-suit was commenced.

The defendants for title put in evidence a sheriff’s-deed based upon a judgment rendered on the thirtieth of June, 1864, in favor of James A. Matney against. Edward 0. Hays. The sale was made on the eighteenth of March, 1869, by virtue of an execution issued on that judgment. The deed is dated the tenth of April, 1869, and it describes the property as “lot 5 in block 2 in Noble tract, being the subdivision of the south half of northeast quarter of section 20, township 57, range 35.” This deed was recorded on April 30,1869. The defendants have acquired all the title of Matney by various subsequent deeds which describe the property in the same way.

I. A complaint is made on the ground that the trial court did not give full force and effect to the plat of Hays’ second railroad addition, because it was-acknowledged before the deputy recorder of deeds. The plat was admitted in evidence when offered by the-plaintiff, and we shall treat it, as in proper form and duly acknowledged and recorded.

The plaintiff next assails the sheriff’s deed toMatney on the ground that he should have sold the property according to the description of the lots as-given by the plat of Hays’ second railroad addition. The plat as we have said was signed, acknowledged and recorded by Edward O. Hays in March, 1868. The sheriff’s deed to Matney is based upon a judgment, against Hays rendered June 30,1864, and a sale made on the eighteenth of March, 1869, by virtue of an execu*107tion issued on that judgment. Under the law as it stood when the judgment was rendered the lien continued for five years. According to this statute the lien of the judgment was in full force at the date of the sale, for the five years would not expire until the thirtieth of June, 1869. The G-eneral Statutes of 1865 reduced the period of the lien of judgments to three years, but it was held in Biggs v. Goodrich, 74 Mo. 108, that this statute shortening the lien of judgments must be construed, either as not applying to judgment liens then in full force or as to such liens the three years should be counted from the date when those statutes went into operation, namely, the first of August, 1866. Applying either of these rules, and the judgment in question was still a hen at the date of the sale. This judgment was,[therefore, a lien on the land when Hays made and filed the plat, and that lien continued up to the-date of the sale. Hays could not, by laying the land off into lots and streets, affect the lien of the judgment. As against this judgment the plat could not operate as a dedication of the streets to public use. The sale when made related back to the date of the judgment and thus defeated the dedication. The judgment creditor was not bound by the plat, and he had a perfect right to disregard it as he did.

But the question whether the judgment was a continuous lien from its date to the sale is of no moment in this case. Hays owned the two-and-a-half-acre tract at the time the execution was levied thereon and the land sold to Matney. If the plat was valid and binding, still the sale would carry all the title held by Hays. It would convey the lots, though not the streets. The argument offered in opposition to this conclusion seems to be that the description in the sheriff’s deed is vague and indefinite. As has been said this sheriff’s deed to Matney describes the land as “lot 5 in block 2, Noble *108tract, being in the subdivision of south half of northeast quarter of section 20,” etc. This same subdivision of the land is mentioned in the Hays’ plat in the deed to Hays from Levi Johnson, and in the.sheriff’s deed to Hays made by virtue of the partition sale. The reference in this sheriff’s deed to Matney to the subdivision of the south half of northeast quarter of section 20, etc., refers back and can refer to nothing but the subdivision made at the partition sale; and this reference makes the report of that sale and the plat therewith filed a part of the sheriff’s deed in question, just as much so as if they had all been copied therein.

By going back to the partition proceedings, as we must, the description is made definite and certain. Possibly the fact that the sheriff sold this entire addition in a lump would have been a good ‘ ground for setting aside the sale had timely proceedings been taken for that purpose, but the sale is not void. Such a complaint would not be heard even in a proceeding to set aside the sale at this late day and after rights of third persons have attached, much less is the sale void for any such a reason.

The sheriff’s deed to Matney carried all of the Hays title, and the plaintiff acquired nothing by his deed. Indeed, this appeal is without any merit whatever, and the judgment is affirmed.

All concur.