Shelton v. Horrell

232 Mo. 358 | Mo. | 1911

Lead Opinion

IN DIVISION ONE,.

GRAVES, J.

The sufficiency of the petition and the character of this action are in dispute. Plaintiff in the brief styles it “a suit in equity . . . for the purpose of removing a cloud from the title to one hundred and sixty acres of land.” The substantive charges of the petition are: (1) That on and prior to September 11, 1897, plaintiff owned in fee the land in dispute, which is 160 acres of land in Pemiscot county; (2) that on September 11, 1897, the then sheriff of Pemiscot county sold said land at execution sale under tax judgment, and delivered to the purchaser thereof a tax deed which was recorded in that county and that such deed is a cloud-upon plaintiff’s title; (3) that said tax deed should be cancelled, set aside and for naught held, because: (a) the sheriff failed to divide the land into subdivisions, but sold it in solido in violation of law, whilst said land was susceptible of four subdivisions, either of which would have brought more than the whole taxes, interest and costs; (b) said land was at the date of sale worth $1200', and had the sheriff complied with the law and sold only one subdivision plaintiff w’ould have had left 120' acres of the value of $900; (c) plaintiff had no knowledge of such sale or pretended sale until a few months prior to — day of February, 1905, at which time suit was brought for its recovery, but which suit was dismissed in November, 1905; (d) plaintiff never directed that said land be sold in solido, but had he known of the sale he would have directed it to be sold in the smallest legal subdivisions; (e) plaintiff has never received any of the surplus funds from the sale, nor authorized anyone to .receive them for him; (f) said tax deed fails to state the taxes due for the different years for whieh it was sold; (g) the land in question, with accrued taxes of only $9.87, was sold to pay a judgment for $39.66, which was rendered for taxes ori this and other lands, which lands taken together did not constitute one tract, but lie in three separate tracts; (h) that no levy was ever made prior to the sale, and (i) no special execution was ever issued by the circuit clerk authorizing the sale by the sheriff.

The foregoing is a complete and full analysis of the petition. Following that part of the petition thus .above analyzed, is a paragraph offering to pay the amount of the bid at the sheriff’s sale and all taxes with interest, subsequently paid, and a further paragraph averring the non-residence of defendant, Mrs. A. Horrell. Then follows the prayer in this language:

“Wherefore, plaintiff prays that said deed be can-celled, set aside and for naught held, and that the court try, ascertain and determine the estate, title and interest of the plaintiff and the defendants herein respectively in and to the real estate aforesaid and for such other and further relief as to the court may seem meet, just and proper in the premises.”

Defendants’ answer makes certain admissions and states their defense. The admissions are (1) that plaintiff owned the land on September 8,1897, and that on said day it was sold for taxes, but aver that the sale was by order of court and under a special execution duly issued commanding the sheriff to sell the same or so much thereof as was necessary to discharge the State’s lien for taxes; and (2) that the land was sold under a judgment of the Pemiscot Circuit Court, but aver that the judgment was valid and regular and was for past due taxes owing to the State.

Following these are numerous allegations going to make up the charge and defense of laches, and then follows a plea of former adjudication. After these, the defendants admit the sale and aver that they own the land in fee simple. All other allegations of plaintiff’s petition not specifically mentioned are denied. Such is, in substance, the answer. Judgment was for defendants and plaintiff has appealed.

The constitutive allegations in the defense of laches and former adjudication we have left to be taken with the evidence hearing thereon. These and the evidence can-best he discussed in the opinion under the points made. This sufficiently states the case.

I. The insufficiency of this petition as a bill in equity to remove cloud upon title is attacked in this court. It might be added here that not only does plaintiff call his pleading a bill in equity in the brief filed in this court, but in entitling his cause in the court below he so denominated his action.

Considering the instrument to be such as plaintiff denominates it to be, how stands it as to sufficiency? In determining the sufficiency of a bill, resort may be had to the pleadings in the case, but not to the evidence. We say the pleadings in the case, because after judgment and on attack in this court, the doctrine of aider by answer may be invoked.

The petition was filed in the court nisi on April 12, 1906. There is not an allegation in the instrument which avers that plaintiff had either the equitable or the. legal title to this land at the date this suit was brought. The only averment is that he had the legal title September 11, 1897. If it can be said that the succeeding allegations show that on that date his legal title was changed to an equitable one or to a clouded title by reason of the sale and accompanying circumstances yet there is no allegation that plaintiff retained this equitable or clouded title from September 11, 1897, to the date of filing his suit. We are left to infer that he had not parted therewith in. all these years.

If this bill states a cause of action at all it states a cause of action to remove a cloud from the title. In 17 Ency. of Plead, and Prac., p. 278, such bill is thus defined: “A bill to remove a cloud is a bill to procuré the cancellation, delivery np, or release of an instrument, incumbrance, or claim constituting a cloud on tbe plaintiff’s title, and which may be used to injure or vex the plaintiff in tbe enjoyment of bis title.”

Of sucb a bill equity bas inherent jurisdiction, independent of statutes. Tbe same authority at page 279, thus speaks: “Equity bas inherent original jurisdiction of bills and complaints to quiet title and to remove clouds. Indeed this is an independent bead or source of equitable jurisdiction, not requiring any accompaniment of fraud, accident, mistake, trust, account, or other basis. Sucb bills are merely an illustration of tbe ancient quia timet jurisdiction • exercised by courts of chancery. Tbe jurisdiction is exercised with great caution.”

One of tbe prerequisites of sucb bill is that it must allege what title or interest tbe plaintiff bas in tbe property. If sucb allegation is absent, the bill is demurrable. [17 Ency. Pl. and Prac., p. 327.]

This bill fails to allege that the plaintiff bad any interest in tbe property at tbe time be brought bis suit. It can be taken as true that be bad the legal title in 1897, yet without .some further averment as to tbe. condition of tbe title at tbe institution of tbe suit tbe bill is bad. Plaintiff should aver that- be bad some interest at tbe time be invokes equity.

Tbe petition is bad for another and further reason. It fails to aver that tbe defendants bad notice of the irregular or unlawful act of tbe sheriff. Prom tbe bill it may be deduced that tbe defendants are subsequent grantees of tbe tax sale purchaser. On this question tbe bill says: “Plaintiff here and now offers to pay to tbe defendants, William Hunter and J. A. Horrell, the amount paid by them or their grantor for said lands at said sheriff’s sale, together with what taxes they have since paid on said lands, with interest thereon since the-date of said pretended sale.”

The use of the phrase “or their grantor” indicates that the pleader meant that they were subsequent grantees. Such is the fact in evidence, but the evidence should not be considered in weighing the sufficiency of the bill. It appears by the evidence that defendants-bought from one Stacey, the. purchaser at the tax sale, and took from him a quitclaim deed. The bill should have averred that they took with notice of the act of the sheriff, or it should have alleged that they took by quitclaim deed. The failure to make such an allegation is fatal to the bill. The bill must be measured by its own allegations and not by the facts in evidence. [Shelton v. Franklin, 224 Mo. 342; Griffin v. Franklin, 224 Mo. 667.]

To our mind this bill fails to state a cause of action against the defendants.

In the Shelton ease, supra, which case received as much consideration from this court as any case of recent years, we said:

“From the cases we take the rule to be: (1) That the statute is directory; (2) that by it some discretion is allowed the officer; (3) that an abuse of this discretion may be and should be reviewed by the court either upon motion or direct attack by a bill in equity; (4) that this attack should be made in seasonable time; (5) that the abuse of the sheriff’s discretion by a sale in solido is only an irregularity which may render the sale and deed voidable and not void. To these conclusions may be added that the attack by bill in equity is good as against a subsequent purchaser with knowledge or notice of the unwarranted violation of the sheriff’s discretion and knowledge or notice of the injury done the execution debtor thereby. So that, under these authorities, the deed in question is not void upon its face for the reason now under discussion, but. is only voidable. To make, a case the plaintiff would have to show: (1) A sale in solido; (2) that such was abuse of the discretion lodged with the sheriff; (3) consequent damage and injury to the judgment debtor; (4) a seasonable application for redress; and (5), if against a subsequent grantee, knowledge and notice upon his part of the things mentioned in the preceding paragraph, and reiterated in the first three numbered subjects in this paragraph.”

What must be shown must likewise be properly brought to an issue by proper pleadings.

H. Nor does it state a good cause of action under our old section 650. Under that statute the plaintiff must state his interest in the property. Such interest must be a present rather than a past interest. This pleading does not undertake to state a present interest in the lands involved. To say that this instrument stated a cause of action, either under the statute or in equity, would be to wipe out the rules of pleading.

If I bring a suit in replevin and say that three years ago I was entitled to the possession of certain chattels, it is not equivalent to saying that I am now so entitled. So, too, if I aver that ten years ago I owned certain real estate, that is not equivalent to saying that I now have some interest therein. Plaintiff must prove an interest at the date he filed the suit and what must be proven must be pleaded, where it. goes to the essence of the case.

III. But even if it be granted that the scantily worded petition states a cause of action, yet the plaintiff has been guilty of such laches as should debar his .recovery in this case. According to the sheriff’s deed this land was sold September 8, 1897, to W. L. Stacey. These defendants bought of Stacey March 18, 1900', or two years and a half thereafter. They paid $800' and took a quitclaim deed. The plaintiff’s deposition was read in evidence. On examination in chief he said:

“My name is William Shelton, age eighty-two years, and reside now at Sanford, Kentucky. I bought six hundred and forty acres of land in Pemiscot county, Missouri, from J. B. English of Bowling Green, Missouri; I don’t remember exactly the year I bought the land. After the purchase I paid taxes on the land for many years, for which I received tax receipts. Owing to the fact that the tax continued increasing from year to year, and to the fact that I had so many other uses for the money I had, I stopped paying the taxes, and the lands were sold for the taxes. Owing to the fact that the value of the lands increased, and to the'fact that more of the. land was sold to pay the tax than was necessary, I authorized Messrs. Duncan & Bragg to^ bring suit for the recovery of the land. All the land was'not sold for the taxes. Some of the tax receipts are now in the possession of my attorneys, Messrs. Duncan & Bragg, of Caruthersville, Missouri. All of the land was not sold for taxes.”'

As a part of his cross-examination he further said:

“Q. When did you hear from Messrs. Duncan & Bragg in regard to this land? A. About five or six years ago, I think.

“Q. When did you first hear when the lands were sold for taxes ? A. I think about ten years ago.

“Q. You never authorized the bringing of a new suit? A. (Plaintiff declined to answer) I paid very little attention to the Pemiscot county lands and I do not remember.

“Q. You did not consider your Pemiscot county lands as assets of your estate? A. That was about, the way of it. ’ ’

The judgment in this case was entered April 30,. 1907, and whilst the record does not show the time this deposition was taken, it must have been before, the-trial. If, as plaintiff says, he knew this land was sold for taxes ten years before the taking of his deposition, he knew that fact two years or more before the defendants bought. Defendants swear they had no actual knowledge of the alleged misconduct of the sheriff.

In Shelton v. Franklin, supra, we said: “To make a case the plaintiff would have to show: (1) A sale in solido; (2) that such was abuse of the discretion lodged with the sheriff; (3) consequent damage and injury to the judgment debtor; (4) a seasonable application for redress; and (5), if against a subsequent grantee, knowledge and notice upon his part of the things mentioned in the preceding paragraph, and reiterated in the first three numbered subjects in this paragraph.”

, Under- this evidence is this application seasonable? Does it not show that the defendant had in effect abandoned his property and didn’t even reckon it as an asset of his estate? He waits practically ten years after he acquired knowledge of the fact that his property had been sold for taxes, and then ‘ ‘ owing to the fact that the value of the lands increased” he concludes to disturb the title of the defendants, who without actual knowledge had paid eight hundred dollars for the property. Defendants took under a quitclaim deed, it is true, and stand in no better shoes than their grantor, the purchaser at the tax sale, but that is only a circumstance to be considered in applying the beneficent doctrine of laches, if indeed it could be said to be even a circumstance. Plaintiff with this knowledge stands by and permits them to pay their money and afterwards to pay taxes on the land without taking a seasonable step to assert his rights.

Speaking to the question of laches, through Lamm, P. J., in the very recent case of Rutter v. Carothers, 223 Mo. l. c. 640, this court said: “Laches gives rise to an equitable doctrine, free from artificial or fixed rules, having regard to the relations of the parties to each other and to the subject-matter to be applied to each case in accordance with its own particular circumstances in order to reach substantial justice — for instance, where plaintiff lies by an unreasonable length of time awaiting a rise in land .or some future event to determine his course, or where by acquiéscenee or by sleeping upon his rights he creates the belief in others that those rights are abandoned, whereby he influences them to act on such belief, or where something has intervened whereby the party asking relief would obtain an unconscionable advantage if the relief were given. Under these or like conditions, where there is some natural justice behind the claim, the defense of laches is allowed, independently of the Statute of Limitations. [Cockrill v. Hutchinson, 135 Mo. l. c. 75 et seq; Stevenson v. Smith, 189 Mo. l. c. 446, et seq; Landrum v. Bank, ,63 Mo. l. c. 56 et seq; Bucher v. Hohl, 199 Mo. l. c. 330.]”

It was the doctrine herein announced that prompted the rule of “seasonable application” in the Shelton v. Franklin case, supra. A person should not be permitted to abandon his property as ‡0 the payment of taxes and the discharge of tax liens, and then after the State has enforced its lien wait for years to question the act of a sheriff, who has some discretion as to the manner of sale. In this case the plaintiff admits that owing to increased tax rates he had in effect abandoned his property to the State. He admits that he only concluded to question the sale after the land had advanced materially in value. He forgets that by timely efforts he could have prevented defendants from expending their money for the land, if his contention now is. good. He stands to one • side for nearly ten years, knowing that his land had been sold for taxes. During this time the defendants were permitted to expend their money for the land, and thereafter to pay the taxes thereon. In the meantime by,reason of the construction of a public levee, the price of the property greatly increased. This character of conduct should be condemned, and the doctrine of laches reaches it. Laches as we understand the rule is not measured by the yardstick of the Statute of Limitations, but rather by the conduct of the parties and the equities of the situation. The plaintiff in this case has introduced no evidence showing that he was injured by a sale in solido. On the other hand, the defendants offered evidence to the effect that there was no injury by reason of the sale having been made in solido.

Applying the doctrine of laches to cases of this kind the Federal courts have announced some salutary rules. In the case of Lemoine v. Dunklin County, 2 C. C. A. l. c. 347, Caldwell, J., for the U. S. Circuit Court of Appeals said: “Laches is imputed independently of the Statute of Limitations. Courts of equity apply the doctrine on principles of their own, and time is only one of the circumstances to be considered in its application. It is settled, say the Supreme Court, ‘that laches is not, like limitations, a mere matter of time, but principally a question of the iniquity of permitting the claim to be enforced — an iniquity founded upon some change in the condition or relations of the property or the parties.” [Galliher v. Cadwell, 145 U. S. 368; Godden v. Kimmell, 99 U. S. 201; Mackall v. Casilear, 137 U. S. 556.] ”

The distinction drawn is that there should be a changed condition of the property or the parties. That in this case there has been a changed condition of the property there can be no question. Plaintiff so testifies. That the parties were misled by the inaction of the plaintiff likewise appears from the record. Had plaintiff brought an action when he first learned that his land had been sold, the defendants might have been saved the worry of this suit. Under the law plaintiff had two remedies: (1) a motion in the original case to set aside the sale, and (2) a timely bill in equity to set aside the same. Upon these rights he slept for nearly ten years. Under evidence which shows that the land had materially advanced in value, and to some extent through the efforts of the defendants, it will hardly do to say that there has not been a changed situation, which was occasioned by the laches of the plaintiff. He says that he abandoned his property to the lien of the State for taxes. He says that he voluntarily quit paying taxes, because he thought he could put his money to a better use. He says that he knew that his property had been sold for taxes shortly after the sale. He says further that he authorized this suit because after the sale the property had advanced in value.

Mr. Justice Brewer, in the case of Naddo v. Bardon, 2 C. C. A. l. c. 337, has aptly and justly said: “No doctrine is so wholesome, when wisely administered, as that of laches. It prevents the resurrection of stale titles, and forbids the spying out from the records of ancient and abandoned rights. It requires of every owner that he take care of his property, and of every claimant that he make known his claims. It gives to the actual and longer possessor security, and induces and justifies him in all efforts to improve and make valuable the property he holds. It. is a doctrine received with favor, because its proper application works out justice and equity, and often bars the holder of a mere technical right, which he has abandoned for years, from enforcing it when its enforcement will work large injury to many.”

Touching the question, Hill, C. J., in the Supreme Court of Arkansas in the case of Turner v. Burke, 81 Ark. 352, has said: ‘ ‘ He concluded that the lands were not worth their tribute to the State, but the appellees had more faith in their future and discharged the duties of landowners to the State; and whose equity is the stronger? The statement of the ease answers it. The appellants are seeking to reap where they have not sown, and to gather where they have not strewed, and this is not the first time such conduct has caused loss. [Matt, xxv, 15-30.] ”

The learned judge then quotes from Judge Brewer as herein above quoted. Further on the same judge says: “So, if, the title being beyond challenge, during these years he pays no taxes thereon, makes no effort to improve or increase its value, and by the labor and efforts of others, under the protecting powers of the State, large value has been given to it, the State may properly say to him, as may also the individuals who have thus wrought this change in value: ‘You abandoned the property when it was comparatively valueless. You have taken no share in the burdens of taxaation or the support of the State. Others have toiled, paid taxes, and made the property valuable. Therefore, because of your shirking of duties and obligations* you shall not, whatever may have been the nature of your title in the first instance, be permitted to appropriate the value thus produced by others.’ ” •

So in this case, the plaintiff’s evidence shows that he abandoned this property when it was Comparatively worthless. He left the State to take the property for the taxes. Having so done, he should, not now be. allowed to assert his claim of title. Especially is this true where he admits that he knew that his land had been sold some two years or more before the defendants acquired title. It was his duty after he acquired knowledge of the sale to make a timely application for relief. If he could not proceed by motion in the original case, there was open to him a timely application to' a court of equity. This latter right he refused to exercise for years. To our mind, under the case law, the doctrine of laches precludes the right of the plaintiff to recover..

IV. There are hut slight differences between this case and the Shelton-Franklin case, supra. In the Franklin case, the subsequent grantees took by warranty deed. In this they took by quitclaim deed. Taking title in that way, the subsequent grantee takes the title subject to all the equities existing between' the owner of the land and the purchaser at .the tax sale. In other words the subsequent purchaser under a quitclaim deed stands in no better situation than the original purchaser. The knowledge of the one is the presumptive knowledge of the other. This because of the character of the conveyance. But however this may be, it does not affect the doctrine of laches, if in fact the plaintiff has been guilty of laches. In the Franklin case* supra, there was no quitclaim deed, nor was there evidence that the land was sold in solido. In this case we have both. In other words, the record shows that defendants deraign title through a quitclaim deed, and there is some evidence as to the manner of sale. Yet this evidence is not very satisfactory or convincing. Whilst it seemingly appears from this record that no injury was done to the plaintiff by reason of the action of the sheriff, yet all these questions were for the court nisi. Upon what theory the court acted, we are unable to determine. But be this as it may, with the views we have upon the petition and the question of laches, the matter becomes immaterial. If the petition states no cause of action the judgment is not out of line. If the plaintiff is precluded by his laches the judgment is still correct. This therefore obviates .a further discussion of the question as to what effect the quitclaim deed, and proof of a sale in solido, would have upon the case. As stated above the proof is very scanty upon the question of a sale in solido. What view the trial court took of this question is rendered immaterial in view of what we have concluded upon other points.

Under the facts, excluding the question of the insufficiency of the petition, the judgment is for the right party. Upon the whole the judgment should he and is affirmed.

IN BANC.

GRAVES, J.

The foregoing opinion written in Division One is adopted as the opinion of the Court in Banc.

Lamm, Woodson, and Ferriss, JJ., concur; Valliant, G. J., and Brown, J., dissent; Kennish, J., does not sit in the case; Valliant, G. J., has leave to file dissenting opinion hereafter.

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Dissenting Opinion

DISSENTING- OPINION.

VALLIANT, C. J.

The points on which this case turned in the majority opinion of the court are of so much importance that I deem it my duty to signify the reasons for my dissent.

I. The petition is criticised and is condemned as failing to state facts sufficient to constitute a cause of action. It does not appear to have occurred to the defendants that there was any defect in the petition until they reached this court. There was no demurrer filed or other challenge of the sufficiency of the petition in the circuit court. Of course, if the petition is fatally defective, if it states no eáuse of action, its infirmity may be shown at any stage of the litigation, but if it is only clumsy, or not clear in its statements, yet on a liberal construction the court can see with reasonable-certainty a cause of action stated, it is the duty of the court so to do. That is what section 1831, Revised Statutes 1909, requires. When an objection to the sufficiency of a pleading is made for the first time in an appellate court it ought not to be sustained unless it must be sustained. There is also another rule of pleading that should not be overlooked in this case, that is, that if the answer gives aid to the petition the aid will be taken into account.

a. It is said that this petition does not state that the plaintiff held title to the land at the date of filing the petition. It states that he held title on the day of the sheriff’s sale under which the defendants claim. It is a rule of evidence that a condition once shown to exist will be presumed to continue until the contrary is shown. Besides, the plaintiff could not say with truth that he held the title to this land on the day he filed this suit, because the title was then in the defendants, and the purpose of the suit was to vacate that title. The petition says it was the plaintiff’s land September 11, 1897, that it was then sold for taxes and struck off to a person from whom the defendants purchased and under whom they claim and that for certain reasons that sale was illegal and the prayer is that the deed which is the source of defendant’s title be can-celled. That would be a sufficient showing of the plaintiff’s title even under the common law contra proferentem rule of construction.

b. It is also said that the petition fails to state that the defendants had notice of the illegal acts of the sheriff in making the sale. It does not clearly appear from the petition whether the defendants were the purchasers at the sheriff’s sale or purchased from the purchaser at the sale, except in that part of the petition where the plaintiff offers to pay to defendants “the amount paid by them or their grantor” at the sheriff’s sale, together with taxes, etc.,* the words “or their grantor” might imply that the defendants were subsequent purchasers. But if there was a defect in the petition in this respect the answer came to its aid and cured the defect; it set out just how the defendants acquired title, namely, by purchase from Stacey, the original purchaser. And they aver that “the sale was made by the sheriff in manner, mode and fo"rm as prescribed by law,” and that they bought relying on the recorded deed to Stacey which did not show that the land was not sold in small- subdivisions, that they paid in full value for the land “without any knowledge of any irregularity of the sheriff in making the sale of said land.” Thus the defendants by their answer tendered the issue of innocent purchasers for value, and the plaintiff joined the issue in his reply of general denial. Therefore the plaintiff had the right at the trial of that issue to prove, as he did prove, that the defendants were not innocent purchasers for value, because they had bought under a quitclaim deed, stood in the shoes of Stacey and were charged with knowledge of what he knew, and he being present at the sale, knew just what was done, knew that the 160' acres were sold in one body without having first been offered in the smallest legal subdivisions.

c. It is also said that the petition is defective because it does not state that the plaintiff was injured by the sale of the land in a body. It states that the 160 acres were worth $1200 at the date of the sale, that the amount of the judgment for taxes was $9:87, that the land was susceptible of being divided into separate subdivisions of 40 acres each, either of which would have brought, more than the amount of the taxes with interest and costs, that the whole 160 acres were sold in a body for $115, no part of which was ever paid to plaintiff. Was there any use in his adding that he was injured thereby?

d. It is also said that the petition ought to have said that the sheriff in selling the land in bulk abused the discretion that the law confided to him. The argument treats the statute in question, section 3185-, Revised Statutes 1899, now section 2206, Revised Statutes 1909, as if it imposed no obligation on tbe sheriff at all, saying to him in effect, You may or may not, as you please, divide the land in small lots and sell no more than is necessary to bring the amount called for in the execution, or you may sell the whole tract in bulk, if you so prefer; and that seems to have been the sheriff’s opinion in this case, as we shall presently see. But I do not so understand the statute, nor the decisions referred to in the opinion. The statute is: “When an execution shall be levied upon real estate, the officer levying the same shall divide such property, if susceptible of division, and sell so much thereof as will be sufficient to satisfy such execution, unless the defendant in the execution shall desire the whole of any tract or lot of land to be sold together, in which case it shall be sold accordingly.”

In Shelton v. Franklin, 224 Mo. 342, l. c. 361 and following, eases are referred to holding that that statute is directory. I do not understand when a court says a statute is directory that it means to say that the officer to whom it is addressed is at liberty to disregard it, nor. do the cases cited in that opinion so hold; if that is what the court means when it says a statute is directory, it might as well repeal the statute or adjudge it to be of no force or effect. In Shelton v. Franklin there was no occasion to say what would be the effect if the sheriff should abuse the discretion allowed him in the performance of the duty imposed by that statute, because there was no evidence in that case that the sheriff did not obey the direction given in that statute. The contention there was that the sale was void because the sheriff’s deed did not recite that the land was divided and so offered for sale as the statute-required, but the court held that the absence of such recital in the deed did not render it void. The court said l. c. 364: “There is no oral proof as to the sale being in solido and there is a presumption that the officer did his duty in conducting-the sale.” Therefore Shelton v. Franklin is no authority for saying that it devolves on the plaintiff in this case, not only to show that the sheriff disobeyed the law, but also that he abused the discretion given him by the statute; there are expressions in that opinion to that effect, but they were mere obiter dicta. Assuming that there is a discretion in the sheriff to be exercised when the circumstances justify a departure from the direction prescribed by the statute, it does not devolve on the injured party to prove that the officer not only violated the law but abused his discretion also; it is sufficient to show that he violated the law, and it then devolves on the party who would justify the unlawful act to show that the circumstances justified it. But the cases cited in Shelton v. Franklin do not in my opinion go to the extent of holding that the sheriff may at his pleasure disobey the statute. The first case cited, Rector v. Hartt, 8 Mo. l. c. 461, says: “We regard this statute-as directory. A violation of its injunctions will not make a sale void, although it may be good cause for setting it aside on proper application. . ... All that is intended to be said is, that a sale in mass by a sheriff, of distinct parcels of real estate, is not ipso facto void.” None of the cases following have gone farther than that. They all say that the failure of the sheriff to obey the law in this respect does not render the deed void so that it may be attacked in a collateral way, but that it is voidable in a direct proceeding to set it aside. [Morrison v. Turnbaugh, 192 Mo. l. c. 444.] None of the decisions cited say that the sheriff has a discretion to violate the law or that it devolves on the injured party, when he comes into a court of equity to complain of the violation of the law, to show also that the sheriff abused his discretion. But assuming that the sheriff had a discretion’ and that it devolved on the plaintiff to show by his pleadings and proof that the officer abused his discretion, the plaintiff’s pleading and proof, in my opinion, amply show that. Here are 160 acres of land, which the petition says are easily susceptible of division, sold in mass under an execution calling for $9.87; what more could be said to show a gross abuse of the official power? The act speaks for itself; circumstances to justify it can scarcely be imagined. The sheriff as a witness in the case said: “I sold them that way (that is, in mass) because they were advertised in that shape. I had no particular reason for selling that way, any more, than there was a certain piece of land that taxes was due on and we wanted the taxes, we wanted all that could be made off of the land.” There we have a display of the discretion which the officer exercised. I cannot bring my mind to justify such a wanton abuse of power in direct violation of law whereby a citizen is deprived of 160' acres of land for $9.87 when, if the law had been obeyed, he would in all probability have lost only forty acres or even less.

II. The deposition of the plaintiff was taken and in it he made certain statements to the effect that he knew that the taxes had not been paid on this land, he had stopped paying them because the taxes increased from year to year, "and I had so many other uses for the money 1 had, I stopped paying the taxes, and the lands were sold for taxes.” On cross-examination as to why he had delayed so long bringing suit, he said he paid very little attention to the Pemiscot county lands. "Q. You did not consider the Pemiscot county lands as assets of your estate? A. That was about the way of it.” Much is made of that admission as showing a purpose to abandon the land, also as bearing on the question of laches, to which question I will return later.

First, the plaintiff’s wilful abandonment of the land. Does the motive which actuates a man in failing to pay the taxes on his land affect the consequence of that act in anyway? Suppose two- men each owning 160 acres of land lying side by side, one does not pay his taxes because he does not care for the land, or has other use for his money, the other does not pay his taxes because he is poor and has not the means, both are sued for the taxes, both make default and a judgment is rendered against each, an execution issues on each judgment, the sheriff sells each 160-acre tract in mass and each brings a suit in equity to set aside the sale for the failure of the sheriff to obey the statute, would there be any difference between them as to the right to have the sale set aside? Could the court say to the poor man, We will set aside the sale in your case because your failure to pay taxes was owing to your poverty; but to the other say, We will not set aside the sale in your case, because you were amply able to pay your taxes but thought you had better use for your money? Or suppose it should appear that the sheriff at the sale had said: “Whereas the statute says I shall divide this 160 acres into the smallest parcels into which it is susceptible of division, and so offer it for sale, but it has been held that the statute is only directory and that I have a discretion in the matter, therefore because this 160-acre tract is owned by a rich man who could well have paid his taxes if he would, but who has manifested an indifference to the land, I will not divide it, but offer the whole tract for sale to satisfy the $9.87 judgment.” Would any court listen to that statement as a lawful exercise of official discretion? Yet when reduced to plain English that is all the significance that can be attached to the evidence tending to show the motive that actuated the plaintiff in failing to pay the taxes on this land.

Assuming, for the argument, that the sheriff has discretion to violate the-law under circumstances that would justify it, there are no such circumstances in this case.

III. The testimony shows that this land, the whole 160-aere tract, was sold in mass, and that fact makes the wide distinction between this case and Shelton v. Franklin on which the majority opinion herein rests. It is said in the Opinion that the testimony on this point is not very clear, but I think it is as clear as can be. The sheriff who made the sale testified: “If I sold that piece of land I sold it in one body. During the time I was sheriff making sales for taxes, the land was sold in lots as advertised. ... If a lot was advertised as 160 acres it was sold all at once, it was not divided.” The uncertainty in the testimony referred to in the opinion is in the words, “If I sold that piece of land.” The only question left open by that testimony is did that sheriff sell that land? 'The sheriff’s deed in evidence under which the defendants claim answers that question, and with that question answered there is no uncertainty as to the fact that the land was sold in mass.

IV. I will now pass to what seems to me to be the main point on which the majority opinion rests, that is, that the plaintiff should be turned out of court because he has slept too long; he has been guilty of laches. It is not claimed that the plaintiff is barred by the Statute of Limitations. The sale was made September 11, 1897, the suit was brought April 12, 1906, leaving the plaintiff a margin of five months in which to bring his suit.

Laches is an equitable defense, it is allowed under equitable principles, but only under equitable principles. In a sense it is in derogation of the rights of the party under the Statute of Limitations, and therefore only allowed when right and justice call for it. Equity, even under the ancient practice, when it was not bound by the Statute of Limitations, conformed to a large extent to the terms of the statute, under the maxim, equity follows the law, and it did not refuse to follow it unless there were circumstances that appealed to a court of conscience to interpose its beneficent power. Sometimes eases arose when it would be inequitable to allow a claim because of the lapse of time, though short of the period prescribed by the statute, and in such cases equity closed its doors to the claimant. That was the origin of the doctrine of laches. Laches is not mere delay, it is prejudicial delay, the party pleading the defense must show not only the delay, but that owing to changed conditions which have taken place during the delay he has been injured.

Pomeroy, 5 Eq. Jur. (1 Eq. Rem.), sec. 21, says: "The true doctrine concerning laches has never been more concisely and accurately stated than in the following language of an able living judge: 'Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether oüe presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side and injury therefrom on the other it is a ground for denial of relief.’ ”

That is the doctrine of this court as well as I have been able to learn it from the decisions. In all the decisions of this court to which the majority opinion refers where the defense of laches has been allowed to prevail, there have appeared not only delay and increased value of the property, but other circumstances which put the defendant at disadvantage in making his defense. For example in Bobb v. Wolff, 148 Mo. 335, l. c. 349, the court said of the plaintiff Bobb: "He waits until Wolff is dead and his children are deprived of all the evidence on his side, and stands by and sees Wolff’s estate finally settled without preferring his claim, and sees the real estate, including the land in suit, partitioned, and never once suggests that he has an equity of redemption in the land.” In Rutter v. Carothers, 223 Mo. 631, there is a discussion of the doctrine of laches in which nothing is said contrary to what is above stated as the elements of laches, and it concludes as follows: “The case at bar being barren of essential facts upon which to predicate the defense of staleness or laches, the point is ruled against the defendants.”

In 16 Cyc., pp. 162-163, the law is stated thus: “The most frequent case of laches consisting of delay working prejudice to defendant through change in circumstances is where plaintiff has slept on his rights, and permitted defendant to make valuable improvements on property in controversy, or to make large expenditures in reliance on his title thereto. . . . Where a suitor before proceeding permits such a lapse of time that the evidence has become obscured or lost, relief will be denied because of the difficulty, of doing justice.”

In this case it is true the plaintiff has delayed long in bringing his suit, but he has brought it -within the period allowed him by the statute. Mere delay, as the authorities quoted show, will not preclude the plaintiff on the ground of laches, there must be delay that has worked prejudice to the defendants.

What injury has the delay caused the defendants? No witness has died, no evidence has been lost. It is said that by the plaintiff’s long delay, nearly ten years, these defendants were induced to believe that he had abandoned any claim he had to the land and so believing invested their money in its purchase. But that is a mistake in fact. They purchased within less than three years after the sheriff’s sale and since their purchase they have not spent a dollar in the improvement of the land; it was wild land when they purchased and it is wild land now. They have paid taxes on the land, but that the plaintiff offers in his petition to return to them, together with the amount paid by their grantor at the sheriff’s sale. In their answer they show that they were not influenced in making the purchase by any conduct on the part of the plaintiff, for they expressly say that they relied on the record of the sheriff’s deed to Stacey which was regular on its face.

Having examined the record they concluded to purchase from Stacey and paid him $800 for the land, which they say was its then full value. And .in the transaction they were acting under the advice of a gentleman learned in the law, yet, paying full value, they took a quitclaim deed. They cannot therefore say that they acted unadvisedly and did not know the effect of a quitclaim deed. The deed they took put them in Stacey’s shoes and charged them with knowing what he knew, and he knew that the sheriff in making the sale acted in violation of the law.

But they say that during the delay the land has increased in value, therefore the plaintiff is guilty of laches. If the increase in value had resulted from any improvement the defendants had put upon it, there might be some reason for asking a court of conscience to apply the doctrine of laches to the plaintiff’s suit, although even that may be doubted since they bought with knowledge that the land was sold by the sheriff in violation of law, whereby 160' acres were sold in a body under an execution calling for only $9.87. But the increased value of the land was in no degree influenced by the expenditure of money or labor by the defendants. The answer of defendants itself shows that the increased value was caused by the building of a railroad near the land, and a system of drainage at the public expense.

It is true every man ought to pay his taxes to support the State government, and if he fails to do so he ought to suffer the penalty prescribed by law, and the purchaser at a tax sale,, conducted according to law ought to have what the law gives him, but I do not see any reason for making him a special ward in chancery, or for a court of equity in such case to deny the land owner his legal remedy.

In my opinion the judgment ought to be reversed, and the cause remanded with directions to enter a decree in favor of the plaintiff cancelling the sheriff’s deed.

Brown, J., concurs in these views.