Shelton v. Franklin

• Decision Date: 21 December 1909
• Parties: WILLIAM SHELTON v. J. E. FRANKLIN, Appellant
• Court: Missouri Supreme Court

123 S.W. 1084

224 Mo. 342

WILLIAM SHELTON v. J. E. FRANKLIN, Appellant

Supreme Court of Missouri

December 21, 1909

Appeal from Pemiscot Circuit Court. -- Hon. Henry C. Riley, Judge.

Reversed and remanded (with directions).

John A Hope and Martin L. Clardy for appellant; Oliver & Oliver amici curiae.

(1) Plaintiff failed to show that he ever had any title to the land. Under the evidence the title is still in the Government. He introduced certain entries in "Carleton's Abstract," but these entries do not prove that plaintiff ever had any title, for these reasons (a) The act authorizing "Carleton's Abstract" to be received in evidence, approved March 28, 1901, was the only foundation on which the entries were offered. The act being a special and local law, "changing the rules of evidence," etc., is unconstitutional; hence, the abstract entries proved nothing. Laws 1901, p. 251; sec. 53 art. 4, Constitution 1875. (b) Even if the abstract law had been valid, the entries were not verified as required by it; without this verification they were inadmissible and prove nothing. Laws 1901, p. 251. (c) But even if the Abstract had been duly verified, and the act under which the entries were offered could be held valid, the entries would still be secondary evidence, and would not prove that the title had ever passed from either the United States or the State because better evidence exists. The fire that destroyed the Pemiscot county records did not, as the learned trial court seems to have believed, destroy the public land records at Jefferson City and Washington. These records show to whom Pemiscot county lands were originally conveyed, and so long as they exist, no entry in "Carleton's Abstracts," although duly verified and made evidence by statute, can prove a conveyance from either the State or the United States. (d) Again, even if it had been shown that the Government's title passed to the county, the abstract entry of the patent from the county to George W. Carleton, through whom plaintiff seems to claim, proves nothing, because the entry shows on its face the existence of better evidence, namely, the record of the patent made on October 1, 1885, long after the destruction of the records. Stewart v. Lead Belt Co., 200 Mo. 281. (2) If plaintiff ever had any title, it was closed out and vested in William Hunter, defendant's grantor, by the sheriff's sale under the judgment for taxes rendered by the Pemiscot Circuit Court against plaintiff for delinquent taxes on the land. The order of publication, and proof of publication, by which the court acquired jurisdiction in that case, were legal and regular. But plaintiff says the deed the sheriff made to Hunter pursuant to the sale under execution issued upon the judgment is void, because the sheriff sold it in one tract of eighty acres, instead of dividing and selling it in two tracts of forty acres each, and the court adjudged the deed void on that ground. This ruling is erroneous for these reasons: (a) There is no evidence in the record showing, or tending to show, that the sheriff did not sell the land in subdivisions. We have nothing but the deed itself, and it was introduced, not by plaintiff, but by defendant. The deed does not prove that the sheriff sold the land as one tract. On the contrary, the presumption is that in selling the land the sheriff did his duty, complied with the statute, and having sold it to Hunter in subdivisions, conveyed it all to him by one deed. Mathias v. O'Neill, 94 Mo. 526; 1 Cooley on Taxation (3 Ed.), p. 447; Stieff v. Hartwell, 35 Fla. 609; Crieman v. Johnson, 23 Colo. 254; Towle v. Holt, 14 Neb. 221. (b) But if the evidence had established that the sheriff did in fact sell the land to Hunter as one tract, that would not render the sale and sheriff's deed void. The law applicable to this phase of the case is set forth in defendant's declarations of law numbered 2 and 4; the refusal of these declarations proves that the trial judge ruled in this case that when a sheriff sells land under execution, unless it can be affirmatively shown that he sold it in subdivisions, the sale is not merely voidable, but void, as against not only the purchaser at the sheriff's sale, but any subsequent grantee of that purchaser. Having conceded that defendant, in purchasing from Mr. Hunter, acted in good faith, the ruling in this case that an execution sale of land without subdivision is void at all times and against any remote grantee is one of the "new things under the sun." Until this ruling, it seems to have been settled law that failure of the sheriff to subdivide the land was merely an irregularity which might render the sale voidable, but not void, and that the sale would not be set aside, on account of any such irregularity, in a collateral proceeding against one who had purchased in good faith from the grantee in the sheriff's deed. Morrison v. Turnbaugh, 192 Mo. 444; Jones v. Driskell, 94 Mo. 198; Yeamen v. Lepp, 167 Mo. 61. And if plaintiff ever had a right of action to set aside the sheriff's deed there is plenty of authority for holding him barred by his long silence and delay as set forth in defendant's answer and declaration 6, and as shown by the facts and circumstances in the case. 1 Pomeroy, Eq. Jur. (3 Ed.), secs. 418-19, pp. 695-98; Morrison v. Turnbaugh, 192 Mo. 447; Dexter v. McDonald, 196 Mo. 400; Underwood v. Dugan, 139 U.S. 380; Morgan v. Horsky, 178 U.S. 205; Turner v. Burke, 99 S.W. 76; Osceola Land Co. v. Henderson, 100 S.W. 896. (3) This is not a proceeding in equity. No grounds for equitable relief are stated. It is a suit in which the plaintiff claims "title, estate and interest in real property" by reason of legal rights alone, and it is, therefore, a suit at law, and is brought under section 650, Revised Statutes 1899, by which it is not meant to say that a suit based on equitable rights may not be maintained under that section, but simply that the plaintiff in this case has not averred, proved or attempted to prove any fact which entitles him to relief in equity. After alleging that the deed is void, the petition states the reasons: 1. That the sheriff did not divide the land and sell only so much as would be sufficient to satisfy said taxes and costs, but sold the lands in bulk, and that the lands could have been divided into two tracts of forty acres each. 2. That the deed did not state the amount of taxes for the different years for which the same was sold. 3. That the deed is void because it shows on its face that no levy was ever made. Respondent, it is clear, relies in his petition upon what he assumes to be the defects in the deed as shown by the deed itself. If he does not err as to his interpretation of the law, he could recover in an action of ejectment if he can recover at all. If the deed is void on its face, as he contends, it could not stand in the way of a recovery. In a sense, it is true that both parties treated this proceeding as one impeaching the deed, but, so far as the respondent is concerned, he relied upon what he called the irregularities of the deed as entitling him to relief. He asserted no equities in his petition, and he offered no evidence to prove any equities.

C. G. Shepard, Sam J. Corbett and Duncan & Bragg for respondent.

(1) Appellant for the first time makes the contention in this court that Carleton's Abstract was not competent evidence and did not prove the facts therein recited, and that as to the evidence in this case the title to the land in question yet remains in the Goverment. There being no objection made to the introduction of the evidence at the trial of this cause, this objection comes too late at this time; and further, it was shown at the trial of this cause that both plaintiff and defendant claimed through the same common source of title. Appellant cannot now deny the source of title through which he claimed at the trial. (2) The learned counsel for appellant seems to misunderstand the contentions of respondent and the finding of the court as to the question of the land not being divided and sold in its smallest legal subdivision. The claim of respondent is that such sales will be set aside on timely motion made for that purpose, or by direct proceeding in equity for that purpose, and that this is a direct proceeding in equity attacking the sale of the land for that reason. This court has frequently held that sheriffs in selling the land under execution should divide the land, when susceptible of division, and sell only so much thereof as was necessary to pay the execution and cost, and has repeatedly held that while such failure on the part of the sheriff did not make the sale void, yet the sale would be set aside on timely motion to that effect or on a direct proceeding in equity for that purpose. Yeamans v Lepp, 167 Mo. 61; State ex rel. v. Elliott, 114 Mo.App. 562; Corrigan v. Schmidt, 126 Mo. 304; Gordon v. Heckman, 96 Mo. 350. The learned counsel for appellant, realizing the force of this contention, seeks to evade the proposition on the theory that the appellant is an innocent purchaser without notice, and on the ground that the suit was not timely brought, and was not brought against the purchaser at the tax sale. Such a procedure would give the cunning and the trickster a chance to defraud the honest citizen out of his rights in a manner unknown to equity or to justice. Such is not the law, neither is such common sense. Corrigan v. Schmidt, supra; Black on Tax Titles, sec. 401. (3) Appellant claims there was no evidence to the effect that the land was sold in bulk. The deed itself is evidence of that fact, and shows conclusively that the land was sold in one body to one person for one price. Sec. 3210, R. S. 1899. This section requires the sheriff's deed to recite the place and manner of...