220 Mo. 314 | Mo. | 1909
This suit was instituted under section 650, Revised Statutes 1899, for the purpose of determining the title to the northeast quarter of the southwest quarter and the northwest quarter of the southeast quarter of section 18, township 23, range 17, in Mississippi county, Missouri.
The land in controversy was selected as swamp lands, under the Act of Congress of September 28, 1850, the selection having been approved November 22,1854. Plaintiff offered in evidence two swamp land patents, dated April 19',1859', recorded in the deed rec
The plaintiff, G-. H. Walser, testified in substance that Charles Tucker died in Barton county in the year 1867 or 1868, and that he, plaintiff, was administrator of his estate; that as such he became well acquainted with the heirs of Charles Tucker (naming them), all of whom were parties to the suit in partition in the circuit court of Barton county, at the October term of said court, 1869, and that he bought the land in controversy on the 23rd day of November, 1870, and was the owner thereof.
Plaintiff next offered in evidence a sheriff’s deed, dated November 30, 1875, from William P. Swank, sheriff of Mississippi county, conveying to him the land in controversy, the said deed reciting, in substance, that on November 23, 1870, George A. Jackson, the then sheriff of Mississippi county, under and in pursuance of the judgment and order of the circuit court of Barton county, sold said described land to Charles Tucker, he being the highest and best bidder, for the sum of ten dollars. Said deed further recites:
“And whereas, the said George W. Jackson, the sheriff who sold said land, has left the State of Missouri, and that he failed to make the deed to' said Walser for such land in pursuance to said sale;
“And whereas, on the 26th day of October, 1875, the circuit court of the county of Barton, on the petition of said George H. Walser, to require me, the pres*318 ent sheriff of said Mississippi county, Missouri, to execute a deed to said land, found that said purchase money had been fully paid, and that said George W. Jackson, former sheriff of said county, had removed from this State, and that said George H. Walser had purchased said land at said sale, said court ordered that I, William P. Swank, execute a deed to George H. Walser for said land;
“Now, therefore, in consideration of the premises and of the said sum of ten dollars paid by the said George H. Walser, and by virtue of the authority in me vested, I, William P. Swank, sheriff as aforesaid, do hereby assign, transfer and convey all the right, title and interest and estate of the said (here follow the names of Charles Tucker’s heirs) of, in and to the above described real estate, that might or was sold by virtue of said order as aforesaid. To have and to hold the right, title and interest and estate hereby conveyed unto the said George H. Walser, his heirs and assigns forever,” etc.
Plaintiff also offered in evidence a certified copy of the order .of the said circuit court of Barton county, made on the 26th day of October, 1875, directing William P. Swank, sheriff, to execute a deed to Walser for the land in controversy.
The defendant offered no evidence, but at the close of plaintiff’s evidence he asked the court to declare the law to be “that the plaintiff has failed to show that he has any title to the property sued for, and the finding should be that plaintiff has no title,” which the court refused to do, the defendant excepting.
The court rendered a decree, which was entered of record, finding that the plaintiff was the owner of the real estate described, and that the defendant has no right, title, estate or interest therein. The defendant, after an unavailing motion for a new trial,-appealed from said judgment.
In Hughes v. Hughes, 72 Mo. 136, it is held that an order of sale in partition expires with the term at which the sale is required to be made, and if, for want of bidders, no sale takes place at that time, a renewal of the order must be procured before any further steps can be taken, and a sale at a subsequent term without such renewal is void.
Carson v. Hughes, 90 Mo. 173, was an action in ejectment to recover the same land sued for in Hughes v. Hughes, supra. The court said: “By the order of sale, made at the April term, 1863, of the Audrain Circuit Court, the sheriff was directed to sell the lands at the following October term. No sale was made at that term, but the sheriff, without a renewal of the order, either by the clerk or the court, sold the land at the April term, 1864. No formal order was made approving the sale. To correct some errors a new deed was made out in 1872, and the record entry of the acknowledgment of that deed was put in evidence on the trial
Plaintiff, to obviate the force of the defendant’s contention, says that, while the two cases relied upon by defendant have not been directly overruled by this court, the theory upon which they rest has often been repudiated in subsequent decisions; that section 32, chapter 152, General Statutes 1865, provides that sales in partition may be renewed by “the court or clerk thereof in vacation,” and that as no notice of the application for these renewals is prescribed, and no adjudication of any kind contemplated, they are not intended to affect the rights of the parties, and, therefore, the statute prescribing these renewals should be treated as merely directory, and that if there was a failure to comply with such statute in the case at bar, it was cured by the approval of the sale and the order of the court to make the deed to the plaintiff.
But the record does not directly show the approval of the sale upon which plaintiff’s deed depends, but conceding that it does show, as contended by plaintiff, that the court made a finding that the purchase money had been paid, and ordered a deed made by the sheriff to the plaintiff, this was not equivalent to a renewal order of sale, because the approval of a sale which was at the time void and dead did not instill new life into it. Plaintiff calls our attention to Robbins v. Boulware, 190 Mo. 33, wherein it is held that a failure to advertise the sale of land as required by law was a
It is said by plaintiff that the court had jurisdiction; but conceding that it had, that conferred no authority upon it to decide the case contrary to the law.
As neither party showed title to the land, the demurrer to the evidence interposed by the defendant should have been sustained.
The judgment is reversed.