136 S.W. 345 (Mo. 1911), DePaige v. Douglas

Citation:136 S.W. 345, 234 Mo. 78
Opinion Judge:LAMM, J.
Attorney:J. W. Chilton and James Orchard for appellant.
Judge Panel:LAMM, J. Valliant, J., absent.
Case Date:March 31, 1911
Court:Supreme Court of Missouri

Page 345

136 S.W. 345 (Mo. 1911)

234 Mo. 78




Supreme Court of Missouri, First Division

March 31, 1911

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.

LAMM, J. Valliant, J., absent.


[234 Mo. 80] LAMM, J.

Plaintiffs sue in the Shannon Circuit Court, under section 650, Revised Statutes 1899 (now section 2535, R. S. 1909, as amended), to try and determine title to three tracts of land, aggregating 960 [234 Mo. 81] 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.

Page 346

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 [234 Mo. 82] 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...

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