180 Mo. 231 | Mo. | 1904
This is an action of-ejectment for . the possession of sixty acres of land, described by metes and bounds, in Bollinger county.
The petition is in the usual form and the answer a general denial. The case was tried before the court, a jury being waived. The trial resulted in a judgment in favor of plaintiff for the possession of the land and forty-eight dollars damages. Defendants in due time filed motion for a new trial, which was overruled and they bring the case to this court by appeal for review.
The facts, briefly stated, are substantially as follows :
On the 25th day of February, 1860, the plaintiff acquired by deed from Esau Presnail and wife the title to about sixty acres of land, including the land in question, in section twenty-six, township thirty-three, range ten east, in Bollinger county. The land was in two parcels, one of which contained about twenty acres, and is located in the northwest quarter of the southeast quarter of the section, and the other containing thirty-six acres and a half located in the southwest quarter of the northeast quarter of the section, and joins the twenty acre parcel on the north. The thirty-six acres and a half ' parcel is described in the deed from Presnail and wife to Talley as follows:
“All of the southwest quarter of the northeast quarter of section 26, township 33, range 10, not heretofore conveyed by the said first parties (Presnail and wife), to Christopher Seabaugh.”
The part conveyed to Christopher S.eabaugh was a small three-cornered lot, containing three and a half acres, out of the forty acres, to which neither Talley nor the defendants ever made any claim.
On the 6th day of August, 1895, the collector of the revenue of Bollinger county instituted suit in the circuit
Thereafter, on the first of February, 1896, a special execution was issued by the clerk of the circuit court on this judgment, directed to the sheriff of Bollinger county, and returnable to the March term, 1896, of the Bollinger Circuit Court. This execution describes the land the same as the taxbill, petition and judgment.
The sheriff sold the land under this execution, and' defendant Schlatitz for himself and codefendant Pohlmann,, his son-in-law, who was not at the sale, bought the land for $50, and the sheriff made a deed to them by name of Schlatitz and Pohlmann, for the southeast quarter of the northeast quarter of section twenty-six, township 33, range 10, and acknowledged it in open court on the 11th of March, 1896. The sale was made by the sheriff on March 10, 1896, at the regular March term, 1896, of the Bollinger County Circuit Court.
In this deed the sheriff recites the date of the judgment and the issue of the special execution against this, land, describing it precisely as described in all of the proceedings in the tax suit, and also, ‘ ‘ that by virtue of the special execution directing him to sell said real estate, on thfe 3d of February, 1896, he levied on said real estate, and that on the 10th day of March, 1896,
The land is described accurately in the first part of the deed, but in describing the part struck off and sold at the sale located it in the southeast quarter of the northeast quarter of section 26,. while the judgment and execution were against the first described tract. • Talley never owned any part of the southeast quarter of the northeast quarter of the section.
It was admitted by the parties that in the sheriff’s notice of sale he advertised the land as 36.50 acres, part of southeast quarter of northeast quarter of section 26, township 33, range 10.
The defendant Schlatitz testified that he had no information that the land was wrongly described in the notice, and did not learn of it for sometime after he bought the land. That Talley’s brother first told him
Plaintiff did not ask any declarations of law, but the defendants asked the court to declare the law of the ease as follows:
“1. If the court finds from the evidence that under the execution sale for taxes, made by the sheriff of Bollinger county, in the case of the State of Missouri, at the relation and to the use of Moses Limbaugh, collector of the revenue of Bollinger county, Missouri, plaintiff, against Jesse Talley, defendant, said sheriff in the notice of the execution sale, advertised by him in the Marble Hill Press, a newspaper published in the county and State aforesaid, failed to describe the land sued for in this case, and which he was directed to sell by the execution in said tax cause, but, in said notice of sale, he advertised other and different land than that he was directed by said execution to sell; yet if the court further finds from the evidence that he sold at said sale the land he was directed by said execution to sell, and the land involved in this suit, and defendants at said sale bid upon the same, and became the purchasers thereof; and that they did not know that it was wrongly described in the notice of the execution sale, nor ascertained such fact until they had purchased, and paid the sheriff for the land, and after the deed read in evidence in this cause, was executed to them, then, and in that
“2. The court further declares the law to be that the deed made by the sheriff of Bollinger county, Missouri, to the defendants, read in evidence, transferred the legal title to the defendánts to the lands described in this suit, and the defendants are therefore entitled to recover. ’ ’
The court gave declaration of law numbered one asked by defendants, but refused the second, and defendants saved exceptions.
Defendants in order to maintain the sheriff’s deed under which they claim title, invoke the same rules with respect to the sale of the property by the sheriff and the construction of his deed to them, that applies to deeds inter partes; at the same time they 'concede that the rules of construction of sheriff’s deeds are somewhat different from deeds made by contract, but they insist that this difference does not extend to the description of the property conveyed.
In this position defendants are sustained by the decision of the Supreme Court of the United States in White v. Luning, 93 U. S. 514, wherein it is held, with respect to the description of property conveyed, that the rule of construction is the same, whether the deed be made by a party in his own right or by an officer of the court. But the question presented by this appeal is as to which one of two tracts, both being correctly described according to the Government survey, if either, passed by the -sheriff’s deed upon which defendants rely in support of their defense.
It is well settled that in order to effectuate the intention of the parties to a deed words omitted may be added, changed, transposed or rejected, if the context
The deed recites that while the sheriff exposed to sale at public auction for ready money, the real estate first described in the deed, Schlatitz and Pohlmann were the highest bidders for the following described real estate, viz.:
‘ ‘ Thirty-six and fifty hundredths acres, part of the southeast quarter of the northeast quarter of section 26, township 33, range 10, the said last above described tract teas stricken off and sold to the said Schlatitz and Pohlmann for the sum bid therefor by them as above
It will be observed that the deed not only recites that Schlatitz and Pohlmann were the highest bidders for the land last described in the deed, but that it was stricken off and sold to them for the sum of fifty dollars which was paid to him, in consideration of which he sold and transferred to them “all of the above described real estate, so stricken off aaid sold to them,” not the land first described in the deed, but the land “so stricken off and sold to them.” So that, as it is conceded by defendants that they must stand or fall in this case upon the deed in question, and that they can not obtain a new deed under the provisions of section 3218, Revised Statutes 1899, because the notice of sale erroneously described the land, and as in an amended deed the sheriff can not state that he gave the proper notice, defendants are without remedy.
In conclusion we desire to say that we do not wish to be understood as holding that if the deed were in' ■other respects a valid deed, the description of the land is sufficiently definite to pass the title. Upon this ■question we express no opinion. Our conclusion is that the judgment should be affirmed. It is so ordered.