Dixon v. Hunter

• Decision Date: 29 May 1907
• Citation: 204 Mo. 382,102 S.W. 970
• Parties: DIXON et al. v. HUNTER.
• Court: Missouri Supreme Court

102 S.W. 970

204 Mo. 382

DIXON et al. v. HUNTER.

Supreme Court of Missouri. Division No. 1.

May 29, 1907.

1. REFORMATION OF INSTRUMENTS — SHERIFF'S DEED — JURISDICTION.

Equity has no jurisdiction to reform a sheriff's deed executed pursuant to a sale under a tax judgment; but the remedy is that prescribed by Rev. St. 1899, § 3218 [Ann. St. 1906, p. 1826], authorizing a proceeding to obtain a proper deed from a sheriff.

2. ADVERSE POSSESSION — NECESSITY OF ACTUAL POSSESSION — TAX DEED — COLOR OF TITLE.

Where one claiming under a defective sheriff's deed, executed pursuant to a sale under a tax judgment, was not in the actual possession of the premises, he could not rely on the deed as color of title and invoke the statute of limitations.

3. APPEAL — HARMLESS ERROR — EXCLUSION OF EVIDENCE.

The exclusion of proof in support of a right to reform a sheriff's deed, executed pursuant to a sale under a tax judgment, was not error, where the court was without jurisdiction to reform the deed.

4. QUIETING TITLE — NATURE OF PROCEEDINGS.

A suit under Rev. St. 1899, § 650 [Ann. St. 1906, p. 667], authorizing one claiming title to institute an action against another claiming title to the same real estate to determine the rights of the parties, etc., is not one to determine title as against the world as in a proceeding in rem, but is one to determine issues between adversary parties relating to their respective titles to real estate, and a defendant conceding that he acquired title, if at all, through tax proceedings against an owner under whom plaintiffs claim, must, to deprive plaintiffs of title, establish his tax title.

5. APPEAL — PARTY AGGRIEVED.

Where, in a suit under Rev. St. 1899, § 650 [Ann. St. 1906, p. 667], to determine title to real estate, the court adjudged that defendant had no interest in the property he could not complain of the judgment settling the title as between the plaintiffs.

6. QUIETING TITLE — RECORD — JUDGMENT.

In a suit under Rev. St. 1899, § 650 [Ann. St. 1906, p. 667], one of the plaintiffs died pending the litigation, and on motion his heirs were made parties. The entry on the judge's docket recited that on a specified date the cause was submitted to the court and judgment entered for plaintiffs. The judgment adjudged that the title was vested in "plaintiffs," and that defendant was estopped from setting up any title. Held, that the judgment in favor of "plaintiffs" was a judgment in favor of the heirs of the deceased party and the remaining parties plaintiff.

7. APPEAL — REVERSAL — TECHNICAL DEFECTS — JUDGMENT — CORRECTION — NUNC PRO TUNC.

Where, from the data existing in the clerk's office, a judgment in a suit to quiet title could be corrected by a nunc pro tunc entry formally inserting the names of any plaintiffs omitted, either in the caption or in the body of the judgment for plaintiffs, the judgment, when aided by the statute of jeofailes (Rev. St. 1899, § 672 [Ann. St. 1906, p. 686]) will not be reversed.

8. SAME — JUDGMENT — ERRORS — CORRECTION.

Where the record, on appeal in a suit to quiet title, shows that two persons were made parties plaintiff as heirs of a plaintiff dying pending the litigation, and the judgment was properly rendered in favor of plaintiffs, any informality in the caption or body of the judgment, arising from a failure to insert the names of the substituted plaintiffs, will be corrected on appeal.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Mary C. Dixon and others against William Hunter. From a judgment for plaintiffs, defendant appeals. Modified and affirmed.

Sam J. Corbett, for appellant. Faris & Oliver, for respondents.

LAMM, J.

A decree, nisi, went in plaintiffs' favor in a suit under section 650, Rev. St. 1899 [Ann. St. 1906, p. 667] to try, ascertain, and determine the estate and interest of plaintiffs and defendant, respectively, in 120 acres of described land in Pemiscot county. From that decree, defendant appeals in due form and time.

The original plaintiffs were Edgar G. Sugg and the widow and children of John E. Dixon, deceased. Sugg died pending the litigation. Thereupon his death was suggested, and on motion of Mary Baker, his daughter, and W. T. Sugg, his son, they entered their appearance and were made parties plaintiff by an entry of record. The petition counted on the theory that plaintiffs were seised as owners in fee of said real estate; that it was wild land, not in cultivation or in actual possession; that defendant claimed some interest in it, the nature and character of which was unknown to plaintiffs, and could not be described, except that defendant's claim was adverse and prejudicial to them. Defendant's answer was a general denial, saying that he claimed an interest in the real estate, averring that he was the owner of the whole of it. Accordingly, he set up his chain of title, and pleaded facts to the effect that his title originated in a sale under a tax judgment and execution; that one Carleton purchased at said sale in 1883, and received a sheriff's deed from one Peter H. Scott, acting as such officer; and that defendant held under mesne conveyances from him. It is then alleged that the tax judgment was rendered against the proper owners of the land to whom it was assessed at the time, "to wit, Sugg & Dixon"; that the judgment "recites" the names of "Sugg and Dixon"; that the execution "specified their names"; that they were properly summoned by publication in the Gayoso Democrat, a newspaper published in Pemiscot county; that all the records of that county (including the records of the circuit court) were destroyed by fire in 1882; that Carleton's said deed was "void upon its face" through "accident or mistake," in that it failed "to name the judgment debtors," and "recites that the judgment was against the land, instead of against the persons"; that it was not the deed that should have been made out and executed, and was the product of a careless scrivener, etc. The relief sought by defendant was affirmative, to wit, the reformation of the sheriff's deed "in accordance with the judgment and execution sale made thereunder; that the title in and to said land above described be divested out of plaintiffs, and vested in the defendant; that the title to said land be adjudged and decreed to be legally and rightfully in the defendant"; and for further and general relief. A replication, denying new matter in the answer, was taken as filed. Defendant's answer, asking affirmative equitable relief on matter in pais, changed the suit from one quasi equitable, to one strictly so.

1. At the door of the case lies this question: Is defendant entitled to correct and reform a sheriff's deed in equity? The general doctrine (subject to exceptions not in this case), and the reasons underlying it, were stated by Justice Story, when on the circuit (Bright v. Boyd, 1 Story [U. S.] 478 Fed. Cas. No. 1875), to be: "This is not the case of the defective execution of a power, created by the testator himself, but of a power created and regulated by statute. Now, it is a well-settled doctrine that, although courts of equity may relieve against the defective execution of a power created by a party, yet they cannot relieve against the defective execution of a power created by law, or dispense with any of the formalities required thereby for its due execution, for otherwise the whole policy of the legislative enactments might be overturned." To the same effect is the text of his work on Equity Jurisprudence. 1 Story's Eq. Jur. [13th Ed.] § 96; Id. § 177. In Moreau v. Detchemendy, 18 Mo. 522, it was attempted to correct a sheriff's deed by a suit in equity. The relief was denied on the authority of the text above, and of Bright v. Boyd, and it was pointed out by Gamble, J., that the statutes since 1807 have contained provisions for the completion of sales and the execution of conveyances by sheriffs, and that they furnish the remedy to be applied in such cases, and not the power of a court of equity. That case was followed in Moreau v. Branham, 27 Mo. 351. In Ware v. Johnson, 55 Mo., loc. cit. 503, the same question was up. In that case it was alleged that the sheriff's deed by mistake misdescribed the land, and evidence was offered to prove that mistake, which was excluded. It was held by Adams, J., that the testimony was properly excluded, and further: "A sheriff, in sales of...