55 Mo. 500 | Mo. | 1874
delivered tlie opinion of the court.
. This was an action of trespass commenced in the Nodaway Circuit Court, and taken by change of venue to Buchanan county. The trespass complained of was for cutting timber on lot 2 of section 80, in township 65, of range 37, situated in Nodaway county, which the plaintiff alleged belonged to him. ■ -The- defendants by their answer denied all the allegations of the petition, and alleged title in themselves, to the land in dispute, under and by virtue of a sheriff’s sale of the land as the property of Robert Russell. They alleged that the sheriff sold this identical land, but in his deed, by mistake, described the land as the north half of the west half of lot 2 of the south-west quarter of section 30, township 65, of range 37. They charge that the plaintiff took his title with Ml knowledge of the defendant’s title and of the alleged-mistake; and ask that the plaintiff be estopped from setting up claim to said land. That part of the answer, setting up the alleged mistake in the sheriff’s deed, was on motion of the plaintiffs stricken out and the defendants excepted. ' ■
; Both parties claim title under Robert R. Russell as the. common source of title, and the evidence proved.that Russell held the legal title by regular conveyances from the patentees under the Hnited States. The plaintiffs claimed title under a sheriff’s deed on a sale made on the same judgment against Russell, under an execution subsequent to that under which the defendants claim. The evidence showed that section 30 referred to, was divided into 11 lots, numbered 'consecutively from 1 to 11, and that there was only • one lot in the section, numbered 2. It was also in evidence, that the land was only valuable for the timber, and was subject to overflow, and not suitable for cultivation. The defendants in the progress of the trial offered to «prove that they took possession of the land by using it in connection with their farm for fire wood, and cutting timber for saw logs, and that they took such possession under the sheriff’s ‘ deed under which they claim, .and held it up to the commencement of this suit. This evidence at the instance of the plaintiffs was excluded, and the
1st. A sheriff, in sales of land on execution, acts in the exercise of powers conferred on him by statute. His authority to make a deed is derived from the statute, and no court except the court under whose process he acts, can supervise his proceedings. If he actually levies on a particular tract of land and sells the same as levied on, and by mistake falsely describes the land in his deed, he may, under the supervision of the court issuing the process, make a new deed which will as to parties and privies and all purchasers with notice, relate to the time of the sale, and pass the title from that time. If the sheriff who made the sale becomes incapacitated to make the new deed, our statute provides that it may be made by another sheriff, and these provisions of the statute must be pursued, and furnish the only remedy in such cases. It is á well settled principle, which needs no illustration or citation of authorities, that a court of equity cannot aid the imperfect execution of a statutory power. The court therefore committed no error in striking out that part of the defendant’s answer, and in excluding the evidence, and refusing the instruction in regard to the alleged mistake in their sheriff’s deed.
2nd. But their deed as made covered one-fourth of the land in dispute, and on that ground it was admissible to show title in them to that part of the land. The evidence does not disclose whether the timber was cut on the part covered by the defendants sheriff’s deed or not, and therefore they had the right to introduce this deed as a defense to the alleged trespass, and the court erred in excluding it.
3rd. "When a party has the legal title to land not in the actual occupancy of another, he is presumed to be in the possession so
4th. The plaintiff in his petition asked for an injunction restraining one of the defendants from cutting timber on the land, alleging that he was wholly insolvent and threatened to continue the trespass, and that the land was only valuable for its timber. The defendants demurred to the petition on this account, but the demurrer was overruled, and they afterwards answered and proceeded with the trial. As the defendants did not stand on the demurrer, this point is not properly be? fore us. A bill of exceptions is not the proper way to present a point raised by demurrer. The defendant must stand on the demurrer, to bring the point before this court; by answering over the defendants waived their demurrer; but if the point were properly here, I think it was decided rightly.
Judgment reversed, and the cause remanded ;