Davis v. Hess

• Decision Date: 02 February 1891
• Parties: DAVIS v. HESS.
• Court: Missouri Supreme Court

15 S.W. 324

103 Mo. 31

DAVIS v. HESS.

Supreme Court of Missouri, Division No. 1.

February 2, 1891.

DEED — DESCRIPTION — FORECLOSURE — EJECTMENT.

1. The description in a deed began: "The south half and the east half of the north-east quarter of section nine," described several subdivisions, and concluded: "Containing, in all, 540 acres." If the first clause was interpreted to mean the south half of the north-east quarter and the east half thereof, the effect would be to duplicate the description of one "forty," while to construe it as meaning the south half of section 9 and the east half of the north-east quarter thereof would avoid any duplication, and conform the description to call for quantity. Held that, under the rule that the call for quantity may be resorted to to make that certain which would otherwise be uncertain, the latter interpretation should be adopted.

2. A sheriff, making a sale under a deed of trust in the absence of the trustee, made proclamation that the purchase price must be paid within 30 minutes after the sale. The wife of the debtor bid in the property. Upon being asked what she could do, she replied that she did not know, and soon after left, and did not return. The sheriff resold the property for a larger sum. Held, that the sheriff's conduct was not oppressive; the sale being for cash, he was justified in requiring immediate payment; that it was proper for him to resell before the bidders dispersed, and so avoid the necessity of readvertising.

3. Where a deed of trust provided for a sale "at the court-house door," and it appeared that at the time it was executed there was no court-house proper in the county; that the old court-house had become unsafe and been torn down; that the circuit court was held in a church rented for the purpose; that the county clerk and sheriff had their offices in small buildings on the court-house square; that the terms of the county court were held at the office of the county clerk; that the probate court was held in a building across the street; that a new court-house was in the course of construction, finished outside, but not inside, and had not yet been used for court-house purposes, — a sale at the door of the new, unfinished building will be held to be in compliance with the provision, especially if it is shown to have been well attended, and there is no evidence that anybody was misled as to the place.

4. Under Rev. St. Mo. 1879, § 2249, providing that a plaintiff in ejectment may recover the interest to which he is entitled, though a co-plaintiff fail to prove any interest in the premises, the joinder as plaintiff of the trustee in a deed of trust, who refused to act, will not affect the recovery of the purchaser at a sale thereunder made by the sheriff.

Appeal from circuit court, Benton county; D. A. DE ARMOND, Judge.

Gantt & Casey, for appellant. James H. Lay and W. S. Shirk, for respondent.

BLACK, J.

This is an action of ejectment, commenced by David E. Davis and George C. Heard against the defendant, Hess, to recover 700 acres of land in Benton county. The plaintiff Davis obtained judgment, and defendant appealed. The defendant, Hess, by his deed dated 1st September, 1883, conveyed to Chapman 160 acres of the land in suit, in trust to secure four notes amounting to $2,000, all payable to Scotchbrook. Default having been made, the trustees sold the land on the 7th March, 1887, and the plaintiff Davis became the purchaser. On the 22d December, 1885, the defendant made another deed, conveying the remaining 540 acres to plaintiff Heard, in trust to secure three notes amounting to about $8,000, payable to plaintiff Davis; and on the 5th February, 1887, the sheriff of Barton county, acting as trustee, sold the land to George Davis, who conveyed the same to the plaintiff David E. Davis. The plaintiff Davis, it will be seen, claims title to all of the land through these deeds of trust and the sales made thereunder. The defense is that the sales were illegal for various reasons, and should be set aside, though there is no offer to redeem. Several questions are made concerning the sale of the 540 acres which are not common to the other sale, and these questions will be considered first.

1. The description of the lands in this deed of trust upon the 540 acres begins with these words: "The south half and the east half of the north-east quarter of section nine," and, after describing several other parcels in different sections by sectional subdivisions, concludes: "Containing, in all, 540 acres." The plaintiff contends that the description of the lands in section 9 means the south half of section 9, and the east half of the north-east quarter of section 9, thus conveying 400 acres; while the defendant insists that the words "south half," as well as "east half," refer to the north-east quarter. This construction would at first appear to convey two 80-acre tracts, but it only includes 120 acres, for one 40-acre tract is common to both 80s. The rule of law is well settled that the call for quantity may be resorted to for the purpose of making that certain which otherwise would be uncertain, and especially is this true where the lands are described by sectional subdivisions, as in the case in hand. Burnett v. McCluey, 78 Mo. 676; Prior v. Scott, 87 Mo. 303; Wolfe v. Dyer, 95 Mo. 545, 8 S. W. Rep. 551. If we read the description of the lands in section 9 as conveying the south half of section 9 and the east half of the north-east quarter of the same section, we avoid a double description of any part thereof, and the land conveyed will also conform to the call for...