Clemens v. Rannells

• Decision Date: 31 March 1864
• Citation: 34 Mo. 579
• Parties: JAMES CLEMENS, JR., Plaintiff in Error, v. CHARLES RANNELLS et al., Defendants in Error.
• Court: Missouri Supreme Court

34 Mo. 579

JAMES CLEMENS, JR., Plaintiff in Error,

v.CHARLES RANNELLS et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1864.

Error to St. Louis Land Court.

A tract of 1800 arpens of land was conceded to James McDaniel, and was confirmed to him or his legal representatives by act of Congress July 4, 1836.

February 13, 1802, McDaniel conveyed the land to James Mackey.

April 20, 1825, Pratt et al. had a judgment against Mackey's executors (he being dead) for $725.12 costs. On 3d of June following an execution issued on this judgment, and was levied on a tract of land by the following description:

“A tract containing 1500 arpens, more or less, situated on the River des Peres, part of a tract of 1800 arpens granted to James McDaniel February, 1798, by Don Zeno Trudeau, and adjoins land granted to Mary L. Papin.”

The property was sold and conveyed by the same description to John Mullanphy and Frederick Dent, by sheriff's deed dated August 8, 1825.

The plaintiff, who claimed an interest in the land under this sheriff's deed, brought his ejectment, and at the trial offered in explanation of the deed the following evidence: (1.) Deed of James Mackey to J. Murphy for 100 arpens, part of the 1800 arpens, dated November 5, 1821. (2.) Deed from same to R. H. Price, dated June 10, 1819, for 100 acres, part of the 1800 arpens. (3.) Deed from same to Watson for 105 arpens, part of 1800 arpens, dated June 26, 1821. (4.) Deed from same to Hartnett, for 120 arpens, dated October 9, 1823; also showed the location of these small tracts upon the plat of 1800 arpens conceded to McDaniel.

Oral evidence was offered for the purpose of showing that the description in the deed was known in the community where the sale took place, as identifying same definite tract of land; but the court held the evidence insufficient, excluded the deed, and the plaintiff took a non-suit.

R. M. Field and Shepley, for plaintiff.

I. If a deed intelligibly describes a piece of property, it is a question of fact for a jury to determine as to the particular tract described therein, and this is applicable as well to sheriff's deeds as to others. (Rector v. Hart, 7 Mo. 531; Bates v. The Bank, 15 Mo. 309; Id. 17 Mo. 191; Lisa v. Lindell, 21 Mo. 127; Collier v. Vason, 12 Geo. 442.)

The case of Bates v. The Bank, 15 Mo. 309, is an exactly parallel case to this. In that case it was 35 75/100 out of a quarter section. In this case it is 1500 arpens out of 1800 arpens. If in that case the Supreme Court of this State thought it was a question for the jury to determine what was the land conveyed, it is rather difficult to see why the same principle should not hold good in the present case.

In the case of Lisa v. Lindell, 21 Mo., the fact was that there had been an auction sale of lots upon laying out the addition, and though for the purposes of that trial it was thought sufficient to prove one lot as sold, yet in point of fact many were sold, and bonds for a conveyance were given, and no record was made of most of those bonds for years afterwards, and some of them were never recorded, deeds having been obtained from the original proprietors or their heirs, or by bill in equity. It was under those circumstances that the sale was made and deed given of Lisa's interest in that tract, and the description was “the one undivided third part of the lots which were not sold by Lisa in the addition,” &c.

In Hart v. Rector, Judge Napton said, “a sheriff has no right to sell land under execution except such as he can describe with sufficient certainty, so that purchasers may know what specific land is put up at auction and where it lies.” This is undoubtedly correct doctrine, and all such sales should be set aside; but when made and a deed given as in the case of Lisa, it is evident that the court does not apply it, for it is certain that at the sale of the lots in Bates, Smith and Lisa's addition, there was no way in which a purchaser could inform himself what was sold. But in this case the conveyances of land in the 1800 arpent tract were of record, and three of the four owners at least were in the trial proved to have actual possession of the tracts purchased by them at the time of the sheriff's sale.

II. The evidence was sufficient to allow the deed to go before the jury as to the identity of the land described in it; for,

1. If no evidence had been introduced other than the deeds of the portions already conveyed, and the location of those lots by a surveyor within the 1800 arpent tract, and that there did not remain the amount of 1500 arpens to be conveyed by sheriff's deed, that evidence of itself was sufficient to allow the jury to pass upon the question of the identity of the land conveyed. It is thus brought within the case of Bates v. The Bank, 15 Mo. 309.

2. But the plaintiff went one step further, and attempted to show that the ground described in the sheriff's deed was well known by the description. It is contended that in that he failed. But this is not so. In the case of most of the witnesses it is true, that on cross-examination they seem to say that they referred to the large tract as being well known, but what their whole testimony amounted to, taken together, was a matter for the jury. The evidence (at least, of Ralph Clayton) was, however, not subject to such a criticism, and upon this, if for nothing else, the jury should have been allowed to pass upon the matter.

S. T. Glover, for defendants.

I. The sheriff's deed on its face was ambiguous so as to fail of describing any tract of land, and thereby void for uncertainty.

It is evident the 1500 arpens may be laid off in ten thousand ways, and as there is nothing to show in what manner they are to be laid off, the deed is void for uncertainty. In a conveyance inter partes the deed might take effect, but as a sheriff's deed must be held void. Such has been the course of adjudication. In 10 Ohio, 42, the sale was of 1055 acres, part of a tract of 1731, on Little Miami, located by R. T., and was held void. In 1 Swan, Tenn. 375, the description was as follows: “1950 acres of land in H. county, part of 2500 acres located by D. G., and the deed was pronounced void. (4 B. Mon. 211; 1 Harris & Gill, 172; Id. 434; 6 Gill & Johnson, 76; 1 N. Hamp. 93.) In 1 & 2 Ohio, 414, 416, and 11 Ohio, 316,“one hundred and twenty acres in the Whittaker reserve,” there being twelve hundred and eighty acres in the reserve. (1 Foster, 68.) In 5 Blackford, 5,“Richardson's heirs, 56 acres in the south-east quarter of section 8, township 12, range 13.” In all these cases the sales were held void by the courts.

In our own State the same...