Brannock v. McHenry

• Decision Date: 17 June 1913
• Citation: 158 S.W. 385
• Parties: BRANNOCK v. McHENRY et ux.
• Court: Missouri Supreme Court

158 S.W. 385

BRANNOCK v. McHENRY et ux.

Supreme Court of Missouri, Division No. 2.

June 17, 1913.

Rehearing Denied June 28, 1913.

1. ADVERSE POSSESSION (§ 112) — EVIDENCE — PRESUMPTION — POSSESSION.

As to wild and vacant land, the presumption is that the possession is in the record owner.

2. ADVERSE POSSESSION (§§ 112, 114) — EVIDENCE — BURDEN OF PROOF — "LAWFUL POSSESSION."

A party claiming under Rev. St. 1909, § 1884, providing that whenever real estate, the equitable title to which shall have emanated from the government more than 10 years, shall be in the lawful possession of any person, and which might be claimed by another, for 30 consecutive years, during which the person who might claim has not paid taxes, an action to recover it shall be brought within one year, has the burden of proving lawful possession, and the claimant's non possession; and the payment of taxes and the cutting of timber on different occasions by his agent is not sufficient to prove "lawful possession."

3. ADVERSE POSSESSION (§ 114) — EVIDENCE — SUFFICIENCY.

Evidence in an action to quiet title where defendant claims by lawful possession and payment of taxes for 30 years, as prescribed by Rev. St. 1909, § 1884, held not to show that plaintiff had been out of possession for 30 consecutive years.

4. EXECUTION (§ 313) — SHERIFF'S DEED — ABSENCE OF CERTIFICATE OF CLERK — EFFECT.

A sheriff's deed executed to the purchaser at an execution sale which did not bear the certificate of the clerk of the court under seal that the deed was acknowledged in open court, as required by law, conveyed no title and therefore was not admissible in evidence as proof of record title.

5. EXECUTION (§ 316) — DEFECTIVE SHERIFF'S DEED — CURE.

A sheriff's deed to an execution purchaser, defective because not bearing the certificate of the clerk of the court under seal that the deed was acknowledged in open court as required by law, was not cured by offering in evidence the record of the circuit court showing that the deed was so acknowledged; but the situation was as if no proper deed had been made by the sheriff. If the sheriff was alive and not disqualified by removal from office or from the state, as mentioned in Rev. St. 1909, § 2239, the purchaser might require him to execute a new deed correcting the defect of the former deed without any order of court, and if he was dead or disqualified, the purchaser, upon showing the defect, might obtain an order that the then sheriff execute, acknowledge, and deliver a new deed to him or the persons claiming under him.

6. EXECUTION (§ 316) — SHERIFF'S DEED — REFORMATION — STATUTE.

Where a defect in a sheriff's execution deed, in that it did not bear the certificate of the clerk of the court that it was acknowledged in open court as required by law, entitles the purchaser to a new deed under the provisions of Rev. St. 1909, § 2239, that remedy is exclusive, and a court of equity cannot reform the defective deed.

7. QUIETING TITLE (§ 51) — ANSWER — CLAIM OF NEW DEED.

In a suit to quiet title where defendant claims under a defective sheriff's deed, he may set up in his answer facts sufficient to show that he is entitled to have a new deed made, as it would be within the discretion of the trial court upon proper application and showing to grant a stay of the proceedings for a time sufficient to allow him reasonable opportunity to procure a new deed in proper form.

8. EXECUTION (§ 316) — SHERIFF'S DEED — NEW DEED.

Where there was no showing that the sheriff, whose execution deed was defective in that it did not bear the certificate of the clerk of the circuit court that it was acknowledged in open court as required by law, was dead, or that, if alive, he was disqualified by removal from office or from the state, as prescribed by Rev. St. 1909, § 2239, the court could not order the then sheriff to make a new deed.

Appeal from Circuit Court, Stoddard County.

Action by Milton W. Brannock against Samuel McHenry and wife. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

This is an action under section 650, R. S. 1899 (section 2535, R. S. 1909), to quiet title to the south half of lot 2, the north half of the south half of lot 3, and the south half of lot 4, section 6, township 27, range 12, in Stoddard county, Mo.

The petition is in the usual form. The defendants, by their answer, claim title in themselves, and ask for affirmative relief; also plead the 10-year and 30-year statutes of limitation, and laches. The answer also contained a count asking for a new sheriff's deed from the present sheriff as follows:

"Further answering, defendants aver that they verily believe that the only defect urged by plaintiff against said sheriff's sale and deed is the fact, as claimed by plaintiff, that the circuit clerk of said Stoddard county failed to indorse upon said deed his certificate of the acknowledgment by the then sheriff of said county in open court of the execution of said deed. Defendants state that the said Ebeneezer G. Liles purchased said lands at said sheriff's sale and paid the sheriff the amount of his bid; that R. M. Fraker, the then sheriff of said county, duly acknowledged his execution of said deed in open court, and that the failure of the clerk to indorse his certificate of said acknowledgment of said deed was simply a clerical omission. Defendants state that plaintiff and those under whom he claims, when they obtained title to said lands, did so with full knowledge of the rights of defendants and those under whom they claim in and to said lands, under said sheriff's sale and deed. Wherefore, defendants say that they are entitled at law and in equity to an initial sheriff's deed to said premises to be duly executed by the present sheriff and clerk of said circuit court of Stoddard county, and they pray the court for a decree ordering said sheriff and clerk to execute the same to them."

Plaintiff's reply was a general denial.

One John E. Liles was admitted to be the common source of title, and the owner of this land prior to December 2, 1871. Plaintiff introduced in evidence a deed executed by said Liles and wife to Walter Phelan, dated October 13, 1894, and a complete chain of conveyances from said Phelan to plaintiff. The defendants then offered in evidence a sheriff's deed to said land, dated December 2, 1871, from Robert M. Fraker, sheriff of Stoddard county, to Ebeneezer G. Liles, reciting that said land was sold under executions issued by the clerk of the circuit court of Stoddard county upon personal judgments against the said John E. Liles. Said sheriff's deed was recorded July 12, 1872, in the recorder's office of said county, but the deed did not bear the certificate of the circuit clerk showing that it was acknowledged by the sheriff as required by law. Over plaintiff's objection, defendants introduced in evidence the record of the Stoddard county circuit court, made by the clerk of that court January 10, 1871, reciting that said Robert M. Fraker, sheriff, came into open court and acknowledged the execution of said deed, describing the lands and the parties to the judgments upon which executions were issued. Defendants then offered in evidence mesne conveyances from said Ebeneezer G. Liles to Samuel McHenry, defendant herein.

The evidence tended to prove that defendant McHenry had paid the taxes on this land from 1876 down to the time of the trial, that the lands were wild, unfenced, timber lands, and that the only portion thereof that had been cleared or cultivated was half an acre in the south half of said lot two, which said half acre appears to have been inclosed in a neighbor's field, and not to have been in possession of either of the parties to this suit or those under whom they claim.

The total land in controversy approximates 80 acres, and compromises three separate, nonadjoining tracts. Defendant did not live in Stoddard county, and does not claim to have had actual possession of the land at any time, but the testimony shows that he owned other lands in that county, lying near, but not adjoining, this land, upon which he had a tenant, and that he authorized this tenant to go upon the land in controversy and cut such timber therefrom as he might need. There was some testimony that defendant had an agent residing in the county at one time, and that this agent authorized some parties to cut some timber off a portion of this land. How much timber was cut is not shown. Two witnesses testified for defendant that it had been known in that vicinity for the last 18 years that the land in controversy was defendant's land. The evidence further shows that at the time plaintiff purchased this land, which was on January 28, 1908, he was told that defendant claimed the same by virtue of the abovementioned sheriff's deed, and that he was apprised of the fact that he would likely have to bring suit to quiet the title.

Plaintiff's testimony in rebuttal tended to prove that he did not have knowledge of the defective sheriff's deed at the time he purchased. Plaintiff's evidence further tended to prove that about 13 years prior to the institution of this suit, one of his predecessors in title, R. M. Abner, built a house on said lot number two, and lived there a few years, claiming to own all of lots two and three, and another lot not in suit...