235 Mo. 413 | Mo. | 1911
— Action to recover possession of eighty acres of land in Pemiscot county; and also to set aside and cancel a sheriff’s deed fo.r delinquent taxes by which defendants hold said land.
It is admitted by the parties that one Albert Smith, who died in 1896, is the common source of title; and that part of his heirs are the plaintiffs herein. Defendants hold a deed from one of the heirs of said Albert Smith, purporting to convey to them an undivided one-tenth interest in the land in controversy; and said defendants claim the whole title to said property through a sheriff’s sale for delinquent taxes.
On the fifth day of-September, 1882, defendants’ grantor purchased the land in dispute at a sheriff’s sale for taxes, and received from Peter H. Scott, the then sheriff of Pemiscot county, a deed reciting that the purchaser had paid to said sheriff $62.50 for said
Under this sheriff’s deed, defendants entered into the actual possession of the land; whereupon, plaintiffs on May 11,1904, instituted against them this suit, which, as originally filed, was an ordinary action of ejectment.
While this action was pending, defendants applied by petition to the circuit court of Pemiscot county for a writ of mandamus to "compel Peter H. Scott, whose term of office as sheriff had expired, to make and deliver to the defendants a correct and proper deed; in which petition for mandamus, defendants alleged among other things that the original sheriff’s deed made by said Peter IT. Scott was defective and erroneous, in that it recited that' the judgment of the circuit court upon which said deed is based, was rendered against the land in controversy, whereas in truth and fact said judgment was rendered against one Albert Smith, as the owner of said land; that execution issued on said judgment and that said execution, as well as the notice of sale, recited that said judgment was against said Albert Smith, as the owner of said property.
Before said mandamus proceeding was heard by the trial court, said Peter H. Scott, ex-sheriff as aforesaid, voluntarily made, acknowledged in open court and delivered to defendants an amended sheriff’s deed purporting to convey to them the interest of said Albert Smith in the property in dispute.
Upon ascertaining that this amended sheriff’s deed had been made, plaintiffs herein added another
Defendants’ answer admitted possession of the real estate, but denied all the other allegations of the petition.
At the trial the following admissions were made:
That in 1882 when the land in dispute was sold, the value thereof did not exceed the taxes and costs of selling same,
• That the courthouse of Pemiscot county and the records therein were destroyed by fire December 2, 1882.
When defendants’ amended sheriff’s deed was offered in evidence, plaintiffs objected to it on the following grounds:
“That the same was made almost twenty-three years- after the alleged tax sale and after the land purports to have been sold for taxes; for the further reason that there was at the time of making said deed, no data, records, papers, files or other records of any kind or sort then in existence upon which said alleged amended deed could be based; third, for the further reason that the land in question was not sold as the land of J. A. Smith, but that the suit and action under which the same were admitted to be sold, was against the real estate itself; fourth, that the sheriff has no right or authority after the lapse of twenty-three*419 years to make corrections in Ms deed or execute new deeds in lieu of void or defective ones. That the deed is irrelevant, immaterial and incompetent to prove any issues involved in this case.”
Which objections were sustained; and defendants saved their exceptions.
Plaintiffs to prove the invalidity of the amended sheriffs ’ deed, introduced Peter' H. Scott, the ex-sheriff, who made same. Scott testified that before selling the land for taxes in 1882 he advertised the same in the Gayoso Democrat, a newspaper, and that the amended sheriff’s deed was made from the notice of sale as published and contained in said paper, the eircMt court records and all papers in the case being then destroyed by fire. Said witness Scott further testified that he had preserved a copy of the newspaper containing his notice of sale of the land in dispute; but said newspaper was not produced at the trial; that he brought the tax suit as collector of the revenue of Pemiscot county, against the owner of the land and the land also, and after obtaining judgment, received an execution from the clerk and sold the land. The memory of said witness seemed hazy as to many points. According to his recollection he received but a small sum from the sale of the land, probably not enough to pay the taxes and costs; and he seemed to be in doubt as to who was the purchaser at the sale.
The plaintiffs also introduced as a witness one D. E. Green, who testified that he bid off the land in controversy at the tax sale, but did not pay anything for same; that he bid off a lot of other lands for Sheriff Scott, and that Scott made him a* present of the land in dispute.
The defendants introduced the two attorneys who prepared the amended deed, and they testified that said deed followed the recitals of the notice of sale, as published in the newspaper; and a comparison of
The trial court made a special finding that there was not sufficient evidence to prove the tax judgment, through which said defendants claim, was rendered against the owner of the land in controversy; and that the evidence did not authorize the execution and delivery of the amended sheriff’s deed; whereupon the court rendered judgment declaring’, said amended deed void, and awarding the plaintiffs the possession of an undivided nine-tenths of the land.
Defendants ask a reversal on account of the alleged error of the trial court in excluding the amended sheriff’s deed, and in rendering judgment for the plaintiffs.
OPINION.
The affirmance or reversal of the judgment below turns upon the validity or invalidity of the amended sheriff’s deed offered in evidence by the defendants, which was by the trial court adjudged to be void.
After carefully reading and re-reading the record, we are convinced that ex-sheriff Scott was in possession of sufficient data upon which to make the amended sheriff’s deed to defendants, even though at the time of making said deed he did not have a distinct recollection of all the facts recited in said deed. Scott says that in 1881 and 1882 while he was sheriff and ex-officio collector of Pemiscot county, he brought and prosecuted a suit to collect the taxes on the land in dispute,, and many other similar suits for taxes due on other lands; “that he always brought suit against the land as well as the man” (the owner of the land). That at the .request of the county court, he employed two competent lawyers to assist him with the suits, and in making deeds after the sales
We see no valid reason why, when the records and files in a case are all destroyed, that the sheriff may not rely upon his notice of sale in a newspaper which he has kept since the date of the sale, in making an amended deed to correct an error in his original deed,; particularly so, when, as in this case, the evidence shows no circumstance throwing suspicion upon the correctness of the notice of sale as so published. In the case of Dollarhide v. Parks, 92 Mo. 178, this court approved the action of a sheriff in relying in part upon his sale book for information upon which to make an amended sheriff’s deed. The sheriff’s sale book is not
Plaintiffs’ main objection to the amended sheriff’s deed is that it was not made under an order of court and was not made timely; that it was invalid because made nearly twenty-three years after the tax sale took place. To the first of these propositions, we will say that an ex-sheriff is not required to obtain an order of court before he makes an amended deed to land which he has sold while in office. In making such amended deed, he proceeds under authority derived from the common law, to complete and make effective acts which he began or attempted to perform while in office. [Ozark Land and Lumber Company v. Franks, 156 Mo. 673, l. c. 689.]
No sufficient reason has been shown in this case why Ex-Sheriff Scott should not have made the amended ■ deed twenty-three years after the sale on which said deed is based. The plaintiffs are heirs of Smith, who owned the land at the time of the tax sale; and they have not shown that they improved the land or expended any money on it in any manner., The law required them to take notice of the tax suit and sale of their father’s ' land, even though no proper deed was made in pursuance of such sale. [Fleckenstein v. Baxter, 114 Mo. 493.] The defendants, as disclosed by the record, have taken possession of the land by authority of the tax sale, and were clearly entitled .to the amended deed.
Even if the consideration for the sheriff’s deed had not been admitted by plaintiffs in their petition, the evidence of witness Green is not sufficient to outweigh the evidence of Ex-Sheriff Scótt, to the effect that he did receive a consideration for the land. Scott’s evidence is entitled to more weight than Green’s, because of the presumption of law that he did his duty as sheriff, and did not give away land which it was his duty to sell.
Plaintiffs in their petition prayed to have the sale set aside, because the sheriff received too much money for the land; that he ought not to have sold more than forty acres; but instead, sold the whole tract, and received $60, when only $13,65 taxes were due. This allegation makes us feel inclined to disregard plaintiffs’ demand, made for the first time on appeal, that the deed be set aside because the sheriff received nothing for the property at the sale. Green, who bid off the land at the tax sale, testified that he received a valuable consideration when he sold it to
The defendants’ amended sheriff’s deed is sustained by the evidence, and being invulnerable to all attacks contained in the petition of plaintiffs and in their objections to said deed when it was offered in evidence, we must hold that it passed a valid title to defendants. We therefore reverse the judgment of the trial court and direct it to enter a judgment for defendants.