DePaige v. Douglas
| Decision Date | 31 March 1911 |
| Citation | 136 S.W. 345,234 Mo. 78 |
| Parties | EMMA DePAIGE, ROGER DeWOLF and J. WILLIAM CHILTON, Appellants, v. SAMUEL and DORMAN B. DOUGLAS |
| Court | Missouri Supreme Court |
Appeal from Shannon Circuit Court. -- Hon. W. N. Evans, Judge.
Reversed and remanded (with directions).
J. W Chilton and James Orchard for appellant.
(1) The sheriff's deed introduced by respondents as the basis of their title did not convey or purport to convey that portion of the land in controversy described as west one-half of section 9 and west one-half of section 14. Sanzenbacher v. Santhuff, 220 Mo. 274. (2) In proceedings to enforce the lien of the State for back taxes on land, it is the sheriff's duty to sell the separate and distinct tracts of land separately, in consecutive order, until the judgment is satisfied. He cannot sell separate tracts in one sale. Smith v. Cooperage Co., 100 Mo.App. 153; Keene v. Barnes, 29 Mo. 377; State ex rel. v. Kerr, 8 Mo.App. 125. (3) It is the duty of a sheriff to sell only so much of the land embraced in a suit as is necessary to satisfy the judgment. The remainder of the lands remain the property of the owner, the judgment defendant. R. S. 1909 secs. 2206 and 11499; State ex rel. v. Elliott, 114 Mo.App. 562; Yeaman v. Lepp, 167 Mo. 61. (4) The present revenue law does not prescribe a form for deed in tax suits, nor require recitals therein as to the manner in which the land was offered for sale. R. S. 1909, secs. 11501. (5) The fact that a sheriff's deed does not on its face show the manner in which the land was offered for sale, and that it was offered in tracts separately, does not afford any presumption that it was not so offered and sold by the sheriff. Shelton v. Franklin, 224 Mo. 342; Griffin v. Franklin, 224 Mo. 667. (6) The law presumes that an officer does his duty in the absence of proof to the contrary. Shelton v. Franklin, 224 Mo 342; Griffin v. Franklin, 224 Mo. 667; Owen v. Baker, 101 Mo. 413; State v. David, 131 Mo. 393; State ex rel. v. Crumb, 157 Mo. 556. (7) A deed will not be held to convey land which it does not purport to grant or convey. Sanzenbacher v. Santhuff, 220 Mo. 274; Hendricks v. Musgrove, 183 Mo. 300; Potter v. Long, 217 Mo. 605; Steepler v. Silberberg, 220 Mo. 258. (8) In actions to define title under section 650, R. S. 1899, to entitle plaintiff to recover judgment it is necessary only that plaintiff show a better title under the common source than defendant can show under the common source. Harrison Machine Works v. Bowers, 200 Mo. 219; Graton v. Lumber Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 698.
Plaintiffs sue in the Shannon Circuit Court, under section 650, Revised Statutes 1899 (), to try and determine title to three tracts of land, aggregating 960 acres, in Shannon county situate. Judgment going for defendants for all the land, plaintiffs come up.
The pleadings are conventional. Plaintiffs, claiming ownership in themselves, charge that defendants make some adverse claim of title. Defendants answer by way of admitting their own claim and denying the other allegations. For convenience let us designate the parcels of land as A, B, and C. That plan makes tract A the west one-half of section 9; B the west one-half of section 14; C the north one-half of section 17 -- all in township 30, range 3, in said county.
Respondents submit their case without a brief -- a growing course calling for some salutary observations, we now pause to make by the by, viz.: A respondent is at liberty to stand mute here. [Bank v. Hutton, 224 Mo. 42, 123 S.W. 47.] Our rules do not invite him to do so. It is not the beaten way, but (e converso) may be the way to be beaten. The index-finger of wisdom does not point down that way. Because such course breeds doubt and confusion. Verily respondents' silence may mean one or more of several things -- witness: It may mean his judgment nisi is so palpably wrong that it admits of nothing of substance to be said in its defense; or that it is not worth defending and he abandons his case; or that he elects to shift the burden from his own shoulders over to the shoulders of the court in briefing his case; or that he takes his chances in the chapter of accidents and "trusts to luck;" or that his judgment nisi is so manifestly right that nothing worth noticing can be said against it; or that what his antagonist does say against it is a mere "mass of things . . . but nothing wherefore;" or that the court needs no aid from counsel. Finally, his silence may mean that as the judgment of a court of record is presumed to be right until the contrary clearly appears, he chooses to rest solely and only on the friendly, ample (and sometimes cold) bosom of that presumption, and, so resting, goes to sleep as a tired infant on the mother's breast. Obviously, respondents should brief their side of the case as appellate rules contemplate. [Hector v. Mann, 225 Mo. 228, 124 S.W. 1109.]
Sundry questions were raised by plaintiffs below, but their case on appeal hangs on a single thread. The common source of title is one D. F. DeWolf, deceased. Plaintiffs, DePaige and DeWolf, are his sole heirs. If their ancestor owned the land at his death, they became owners by descent cast. Presently, they sell and convey by a deed put of record an undivided one-half interest to their co-plaintiff, Chilton. If their title be good, his is. As said, their title is good by descent if D. F. DeWolf was owner when he died. Under this record, he was such owner unless title passed out of him into one Thomas McGlashan in 1899 by a tax sale and tax deed following. If the title passed to Thomas by that sale and deed, then defendants hold title under Thomas.
Attending to that phase of the case, the record shows that in 1898 tracts A, B and C became delinquent for the taxes of 1897, aggregating $ 23.16, distributed as follows: to A, $ 7.53; to B, $ 8.10; to C, $ 7.53. On suit brought and judgment got on constructive service in the Shannon Circuit Court against D. F. DeWolf for said taxes and costs -- the latter taxed at $ 26.38 -- execution issued and levy, advertisement and sale followed in due course. Thomas McGlashan was the successful bidder at the sum of $ 220 and received a sheriff's deed. The sole question held in judgment is: Did that deed convey title? Plaintiffs concede it conveyed C, but contend it did not convey A and B. The trial court held it conveyed A and B as well as C. If plaintiffs are right in their insistence the judgment should be reversed and the case remanded. Contra, if the trial court is right, the judgment should be affirmed.
Our conclusion is the judgment is wrong. This, because:
The sheriff's deed by apt narrations in its reciting part refers to "tract No. 1," "tract No. 2," and "tract No. 3" -- said numerals, 1, 2 and 3, referring to the same tracts as our letters A, B and C consecutively. Finally, said deed recites that on the 13th day of September, 1899, between certain hours, agreeably to advertisement, at the court house door in Shannon county and during the session of the circuit court at its September term, 1899, the sheriff did (quoting) "expose to sale at public auction, for ready money, the above described real estate, and Thomas McGlashan being the highest bidder for the following described real estate, viz.:
W 1/2 S. 9, T. 30, R. 3, W.
W 1/2 S. 14, T. 30, R. 3, W.
N 1/2 S. 17, T. 30, R. 3, W.
960 acres, for the sum of two hundred and twenty dollars, the said last above described tract was stricken off and sold to the said Thomas McGlashan for the sum bid therefor by him as above set forth.
"In witness whereof," etc.
Observe, the first tract described corresponds to A, the second to B, the third to C, unless the phrase "said last above described tract," means A, B and C -- i. e., the land in solido. The just determination of the merits of our case, therefore, hinges on the construction to be given to the quoted language of the deed. Did it convey A, B and C, or only C?
The solution of that question must be approached in the light of certain facts and certain principles of law. The maxim is The explanation should arise from the whole subject-matter. (Ex tota materia, etc.) One fact is that 960 acres of land passed under the sheriff's hammer (if the trial court's theory be correct), to pay the State of Missouri its taxes amounting inclusive of costs to, say, $ 50 -- a result challenging sharp and jealous judicial attention and having no equitable feature persuasively appealing to a court of conscience. If that result is to receive judicial sanction it should come from the cold law and not one jot or title more or less than the cold law of the case. As pointed by counsel, the tax and costs against A, B and C were about five cents the acre. That the policy of the sovereign State of Missouri contemplates as a usual incident an act of confiscation, the sacrifice of so much for so little, is out of the question,...
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