Evans v. Robberson

• Decision Date: 06 June 1887
• Citation: 4 S.W. 941,92 Mo. 192
• Parties: Evans v. Robberson, Appellant
• Court: Missouri Supreme Court

4 S.W. 941

92 Mo. 192

Evans v. Robberson, Appellant

Supreme Court of Missouri

June 6, 1887

Appeal from Greene Circuit Court. -- Hon. W. F. Geiger, Judge.

Affirmed.

John A Patterson for appellant.

(1) Plaintiff cannot recover in ejectment unless the legal title was vested in him at the time of bringing the suit. Large v. Fisher, 49 Mo. 307; Norfleet v. Russell, 64 Mo. 176; Ford v. French, 72 Mo. 250; Dunlap v Henry, 76 Mo. 106. (2) The sheriff's deed to plaintiff, Evans, is void on its face, from its own recitals for the following reasons: The recital in said deed that the real estate in question was advertised to be sold between the "lawful hours" of, etc. (said day of sale), renders said deed void; said sheriff having set out in said notice his own conclusions, instead of stating the precise time (or between what hours) said sale would take place. Spurlock v. Allen, 49 Mo. 178; Hubbard v. Gilpin, 57 Mo. 441; W. S., sec. 42, p. 609. (3) The deed was defective and conferred no title, because of its failure to contain a recital that the sheriff failed to put up at the front door of the courthouse the required notice of the change of time of sale, etc. W. S., ch. 41, sec. 45; Ladd v. Shippi, 57 Mo. 523; Wilhite v. Wilhite, 53 Mo. 71. (4) The land was chargeable with its own taxes and the fact of its not having been assessed or advertised in the name of the plaintiff does not invalidate the defendant's title. Laws 1872, p. 124, sec. 203. Plaintiff should have recorded his sheriff's deed and not withheld it from record for ten years. W. S., p. 612, sec. 57.

O. H. Travers for respondent.

(1) The sheriff's deed put in evidence by respondent contains all necessary recitals. 1 W. S., sec. 42, p. 609; Carpenter v. King, 42 Mo. 219; Wilhite v. Wilhite, 53 Mo. 71. (2) Even though there was a slight variance the deed would be held good. Stuart v. Severance, 43 Mo. 322; Jamison v. Walker, 4 Wend. 462; Johnson v. Davis, 18 Johns. 7. (3) Even if the deed did not give notice of sale, as required by law, it would not affect an innocent purchaser. Draper v. Bryson, 17 Mo. 71; Matney v. Graham, 50 Mo. 559; Warner v. Sharp, 53 Mo. 598; Davis v. Cline, 76 Mo. 310; Mers v. Bell, 45 Mo. 333; Buchanan v. Tracy, 45 Mo. 437; Pattee v. Blair, 58 Mo. 163. (4) Appellant cannot avail himself of the irregularity complained of in this case. Such an irregularity cannot be attacked in a collateral proceeding. Reed v. Austin, 9 Mo. 723; Hendrixson, Adm'r, v. Railroad, 34 Mo. 188; Cabell v. Grubbs, 48 Mo. 353; Hewitt v. Weatherly, 57 Mo. 276. More particularly is this so when the policy of courts is to uphold and render effective sales made by ministerial officers. Carson v. Walker, 16 Mo. 82; Tanner v. Stine, 18 Mo. 583; Jones v. Manly, 58 Mo. 559. (5) The parol agreement by John W. Leathers, W. J. Garrett, and respondent, to divide the real estate, was a good partition of the same between the parties, accompanied as it was by possession. 20 Barb. 127; 4 Johns. 212; Bompart v. Roderman, 24 Mo. 400; Folger v. Mitchell, 3 Pick. 399; Jackson v. Harder, 4 Johns. 202; Hazen v. Barnett, 50 Mo. 506. (6) The tax deed to appellant conveyed to him nothing, if anything, but the interest of Elizabeth Leathers. She was the only party defendant in the proceeding to collect back taxes. It is settled that the owner of the property should be made defendant, and that the term owner includes every one who has any interest in the property. United States v. Villelonge, 23 Wall. 40; Shaff v. Improvement Co., 57 N.H. 110; Lester v. Lobby, 7 Ad. & El. 124; Proctor v. Railroad, 64 Mo. 113; Carp v. Rogers, 44 Conn. 291. (7) Respondent, as the grantee of E. R. Leathers, owned an undivided half of the remainder based on the life estate of Elizabeth Leathers. Jones v. Waters, 17 Mo. 587; Jourden v. Meier, 31 Mo. 40. (8) Being then an owner of the land he should have been made a party defendant in the tax proceedings. Not having been made a party, he is not bound by the proceedings, nor are his rights affected by the tax deed. Abbott v. Lindenbower, 43 Mo. 165; Hume v. Wainscott, 46 Mo. 145; Gaines v. Fender, 82 Mo. 497; Hubbard v. Gilpin, 57 Mo. 441. (9) Revised Statutes, section 6837, provides for service upon the owner as in ordinary suits, and section 6838 says, the judgment, "if against the defendant shall describe the land." This is not a proceeding in rem. Ramken v. Chandler, 2 Brock. 125; Blackwell on Tax Title, 631.

OPINION

Brace, J.

This was an action in ejectment for the west one-half of the northwest quarter of section 4, township 30, range 22, in Greene county, Missouri. The petition, in usual form, was filed April 14, 1883. The answer of the defendant admitted possession and denied the other allegations of the petition. The case was tried by the court without a jury; verdict and judgment for plaintiff. Both parties claim title under one Theophilus Leathers, who, it was admitted, was the owner of the land at the time of his death in 1857, and who, by will, devised said land to his wife, Elizabeth (who died January 24, 1883), during her life; remainder in fee to his sons, Edwin R. and John W. Leathers. Plaintiff claims to have acquired all the undivided interest of the said Edwin R. in the said northwest quarter of the southwest quarter, by virtue of a sheriff's deed dated June 5, 1873, properly acknowledged and recorded March 3, 1883, and the undivided interest of John W. in the west one-half of said northwest quarter of the southwest quarter of the land sued for by a verbal partition, between him and the said John, of said forty-acre tract, and, on the trial, offered said sheriff's deed in evidence, to which defendant objected, but which was admitted in evidence over his objection. The deed contained the following recitals:

"Whereas, on the ninth day of May, 1872, judgment was rendered in the circuit court of Greene county in favor of Elisha Headlee, public administrator of Greene county, Missouri, having in charge the estate of Nathan Boone, deceased, and against E. R. Leathers, John Evans, and D. M. Evans, for the sum of two hundred and twenty-nine one-hundredths dollars for debt, and twenty-one and twenty-five one-hundredths dollars for damages, and also for costs in said suit, upon which judgment an execution was issued from the clerk's office of said court in favor of the said Elisha Headlee, public administrator as aforesaid, and having in charge the estate of said Nathan Boone, deceased, and against the said E. R. Leathers, John Evans, and D. M. Evans, dated the eleventh of January, 1873, directed to the sheriff of Greene county, and the same was to me on said day delivered; by virtue of which execution I did, on the eleventh day of January, 1873, levy upon and seize all the right, title, interest, and estate of the said E. R. Leathers, John Evans, and D. M. Evans, of, in, and to, the following described real estate, situate in said Greene county, to-wit: the northwest quarter of the southwest quarter of section four (4), township thirty (30), range twenty-two (22), and, whereas, in pursuance of law, and by virtue of authority in me vested by law as sheriff of said county, I caused said real estate to be advertised, for at least twenty (20) days, before the twenty-second day of February, 1873, giving the time and place of sale and of the real estate to be sold, and where situate, as the law directs, by publication in the Springfield Leader, a newspaper printed and published in my said county of Greene, that I would, on the twenty-second day of February, 1873, that being the sixth day of the February term of said court, offer the above-described real estate, for sale at public auction, at the courthouse door in my said county while said circuit court was in session, between the 'lawful hours' of said day, for cash in hand, and, whereas, by an act of the legislature, approved January 18, 1873, the time of holding the said February term of said circuit court of Greene county, for the year 1873, was changed from the third Monday in February to the first Monday in May, 1873, and, whereas, I did, on the first day of the said May term, 1873, of said circuit court, that being the first term of said court held in pursuance of the said change of time of holding the same, made by the act of the legislature aforesaid, put up a written notice, that I would, by virtue of law and the said judgment and execution, on Saturday, the tenth of May, 1873, that being the sixth day of the said May term, and the said day of the term that said sale was advertised to take place at said previous February term, sell said real estate above described; and in said notice, I specified the names of the parties to said execution, the list of the property sold, and stated the fact that said property had been previously advertised, giving the name of the paper and its date; and, whereas, by virtue of authority in me vested, I did, on the tenth day of May, 1873, whilst the circuit court was in session, and between the hours of nine o'clock in the forenoon and five o'clock in the afternoon of that day, expose to sale said real estate at public vendue to the highest bidder, at the courthouse door of my said county, and at said sale D. M. Evans, being the highest and best bidder for said real estate," etc.

It is contended for the appellant that the recital in said deed that the real estate was advertised to be sold between the "lawful hours" of the day upon which it was to be sold, renders it invalid. There is nothing in this contention. It was the duty of the sheriff to designate the day upon which the land would be sold in his...