Keene v. Barnes

29 Mo. 377 | Mo. | 1860

Scott, Judge,

delivered the opinion of the court.

There was no specific objections made to the instruments by which the plaintiff’s title was shown. Objections to legal instruments as evidence must be specific and made in the court below, as they can not be noticed here for the first time. The act of March 2, 1821, authorized the purchasers of public lands to relinquish their purchases, and although Christopher Burckhart was the original purchaser of the tract in controversy, yet the record shows that Angus L. Langham received the final certificate of entry as the assignee of Burckhart. The plaintiff claims through Langham, and there was no specific objection to the deed of the United‘States marshal conveying Langliam’s interest to Lindell, from whom the plaintiff claimed. We see no objections to the proceedings of the marshal, and it is not our business to see them unless they are first pointed out and determined in the inferior court. Sales conducted in the manner of that now under consideration have received the sanction of this court. (Kennerly v. Shepley, 15 Mo. 640.)

As one of his defences, the defendant relied on a sheriff’s deed for taxes as an outstanding title. This deed was made on the 3d day of September, 1844, to Francis T. Russell for tlie taxes due on the land for the year 1842. It appears that the deed contained thirteen tracts or parcels of land, which were assessed in the names of different persons ; and it did not appear but they were owned by different individuals. The aggregate amount of the taxes due on all the tracts is only stated. It is obvious that this deed can not be sustained. If even all the lands belonged to one person, such a sale would be oppressive. The owner might be willing to redeem a portion of the tracts, which he could not do; as the transaction stood as a single sale, the owner would be obliged to redeem all or none. How much would the confusion of the transaction be aggravated, if the lands were owned by different persons ? We do not hold that a purchaser must take a separate deed for each tract purchased by him at a sale, but he must take a deed- so worded as not to embarrass the owner’s right of redemption or clog it with conditions not imposed by law.

The defendant also claimed under a register’s deed dated 80th of March, 1855, on a sale made by the collector of Boone county, on the first Monday of October, 1852, for the taxes of the year 1851 due on the said land. John Hickam became the purchaser at the sale, and conveyed to the defendant. Some of the objections to this deed are founded on extrinsic evidence. Can not the parties see how this court is embarrassed in revising cases like this, when they have been tried without a jury ? A party produces evidence in support of a certain hypothesis; the evidence is received, and instructions are based upon it favorable to the party offering it; and notwithstanding they are given, a verdict is found against him. Under these circumstances it is impossible for this court to ascertain the ground of the action of the inferior court. If the plaintiff would waive his jury trial, why did he not set forth the circumstances in which an instruction under which the collector made the sale and call upon the court to declare whether a sale in his office was a compliance with the law ? As the case now stands, the instruction, to the effect that the sale must be before the court-bouse door, is undoubtedly correct, for it is a statutory requirement ; but how does it throw any light on the case, and how are we embarrassed in reviewing the instructions of this case if we can believe that the court placed any confidence in the truth of the collector’s statement ? If the printed advertisement of the list of all the taxable lands in the state was not put up as the act of 1847 required, how can the sale be supported ? So of the twenty slips required by law to be put up. The evidence, however, in regard to these may not have been sufficient to satisfy the mind that they were not put up.

As to the description of the land, we do not feel willing to give any opinion as to its sufficiency. It does not appear how the tract was reduced to one hundred and forty acres. If the plaintiff had no more than was sold, or more than was sold, let the fact appear. All the facts in relation to this matter should be set forth so as to form an opinion upon it.

As to the compelling of the plaintiff to elect against which of the defendants he would proceed, it will be observed that the defendants set up in their answer the defence that they held portions of the premises in severalty, and denied the joint occupancy. If so, they could not be jointly sued. But the facts of the answer must be proved ; and when they were found true, then the question would arise against which of the defendants the plaintiff would take judgment. (Jackson v. Hagen, 2 Johns. 441; Fosgate v. The Herkimer Manufacturing Co. 2 Kernan, 580; Vorhies N. Y. Prac. 598.)

Judgment reversed and remanded ;

'the other judges concurring.