Lowe v. Ekey

82 Mo. 286 | Mo. | 1884

Sherwood, J.

Action of ejectment for the recovery of the possession of the following described land situate in Erankliu county, to-wit: “All that part of the northwest quarter of the northeast quarter of section 15, township 42, range 1, east, lying north of the Union Road, and west of the Atlantic & Pacific Railroad, (now St. Louis &San Erancisco R. R.), and containing thirteen and 15-100 acres more or less.” The reliance of the defendant is the insufficiency of the proceedings which resulted in the sale of the land, as well as the insufficiency of the description of the land in the tax deed made by the collector. The land was described in this deed as being in Eranklin county. The clause of the deed reciting the judgment in favor of the State, and against the land, describes the land as follows:

The assessment, as shown by the tax-book, described land as described in the deed, except that under the heading, “ Parts of sections ” etc., these letters were used: “ N. W. N. E. N. Union R. W. A. & P. R. R ”

It is said in a work devoted to such subjects :

“ The deed must give a certain description of the land conveyed, and conform in every respect to the mode of designation, pointed out by the local law of the State where it is executed, and of course, conform to the description adopted in the anterior proceedings. Blackwell on Tax Tit. 381. And it is held that the addition of a false particular in the description, which, in a deed between private individuals, might be rejected as surplusage, where the description without it would be certain, would vitiate the deed. lb. In the case at bar, the description contained in the deed does not correspond with that adopted in the “anterior proceedings,” and this, of course, vitiates the deed, and if a portion of a description in a deed cannot be rejected as surplusage, neither can any portion of the description in the prior proceedings be held as surplusage, as this would overthrow the rule of conformity announced above. But the description of the land contained in the deed, and the prior proceedings, is bad for another reason, that of uncertainty. Under the provisions of section 240, 2 Wag. St., 1212, letters might be used to indicate certain things, to-wit :■ “ T. for township, R. for range, L. for lot, B. for block, N. for north, E. for east and W. for west, or any combination or combinations of the four last mentioned letters to denote parts of sections, lots, blocks, or other sub-divisions of real property.” And that section further provides that, “ any and all descriptions of real estate made under the provisions of this act, by the use of letters, figures and characters, as provided in this section, when so made that the land or lot may be identified and located, shall be deemed and held to be good, valid and complete, as though the same had been written out in full.” It is quite obvious that under the maxim expressio unius, etc., letters can only be used in describing land, as provided in that section and not otherwise. It is equally obvious that when letters are so used they will fall short of the requirements of that section, unless the real estate intended to be designated by their use, is so designated thereby, “ that the land or lot may be identified and located.”

This identification or location cannot occur from the “ anterior proceedings.” What is meant hy the letters, N. W. N. E. N. U. R., contained in that portion of the tax-deed which recites the description of the land against which judgment is rendered, certainly cannot be determined by any use of letters such as section 240, supra, warrants. Conceding that we might construe the letters N. W. N. E. to mean the northwest quarter' of the northeast quarter, though they could as readily mean the northwest quarter and the northeast quarter, how shall the letters N. U. R. be interpreted ? And if there was no sufficient description of the land in the “ anterior proceedings,” assuredly a good description in the tax deed could not retroact upon a prior bad description of the land and validate it. But the description in the deed itself, is not good.

There was no evidence tending to show that the land was known by the description set forth in the deed. Such evidence, perhaps, under the rulings in McPike v. Allman, 58 Mo. 551, and kindred cases, might have been sufficient, ■so far as concerns the hare deed, and have identified the land in the manner stated; but as there was no such evi•denee, the identity of the land cannot be ascertained, and this was the opinion of the county surveyor who testified in the cause in the trial court. The deed does not indicate in what part of the tract north of the Union road the 13, 15-100 acres are located. City of Jefferson v. Whipple, 71 Mo. 519 ; Alexander v. Hickox, 34 Mo. 496.

Eor these reasons, the judgment should be reversed and ■.the cause remanded.

All concur. Hough, C. J., absent.