Griffin v. Franklin

• Decision Date: 23 December 1909
• Citation: 123 S.W. 1092
• Parties: GRIFFIN v. FRANKLIN.
• Court: Missouri Supreme Court

123 S.W. 1092

GRIFFIN v. FRANKLIN.

Supreme Court of Missouri, Division No. 1.

December 23, 1909.

1. TAXATION (§ 790) — TAX DEED — CANCELLATION — ACTIONS — PETITION — CONSTRUCTION.

The petition alleged: That plaintiff was the fee-simple owner of certain land in which defendant claimed some interest, the nature of which was unknown to plaintiff, unless it was through a certain tax deed; that plaintiff had no knowledge, when he purchased, that defendant claimed through such deed or otherwise; that the deed was void because it showed on its face that the land was sold by the sheriff in bulk without plaintiff's consent, when a part of it would have brought enough to pay the taxes, and was also void for want of execution supporting the judgment, and the prayer was to determine and quiet title in accordance with Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), as well as for the cancellation of the tax deed if found to be a cloud on plaintiff's title. Held, that the petition was in the nature of a bill in equity to cancel the tax deed and remove a cloud from title, as well as a petition under section 650.

2. APPEAL AND ERROR (§ 900) — PRESUMPTIONS.

It is presumed that the trial court proceeded according to law, in absence of a contrary showing.

3. APPEAL AND ERROR (§ 586) — RECORD.

The abstract showed that appellant applied for and was granted an appeal to the Supreme Court, and that the order was then duly entered, and appellant "appealed the case in due and statutory form," and the record entry, showing that an affidavit for appeal was filed, was brought up on appellant's suggestion of a diminution of the record, as shown by the clerk's return to a writ of certiorari issued by the Supreme Court. Held, that the abstract showed that an affidavit for appeal was filed so as to give the Supreme Court jurisdiction of the appeal; the expression "due and statutory form" implying an affidavit.

4. TAXATION (§ 809) — TAX DEED — CANCELLATION — ALLEGATIONS OF PETITION — NOTICE OF DEFECTS.

In a suit against a subsequent bona fide purchaser to cancel a tax deed because the land was sold in bulk by the sheriff, the petition should allege notice to defendant of the irregularity of the sale.

5. TAXATION (§ 789) — TAX DEED — AMENDMENT.

An amended tax deed, executed under supervision of the court, related back to the original sale and was effective as from that time, so that it was admissible to show title under the sale.

6. VENDOR AND PURCHASER (§ 231) — BONA FIDE PURCHASER — NOTICE — CONSTRUCTIVE NOTICE.

A recorded judgment against land for taxes and the subsequent tax sale would put a subsequent purchaser of the land on inquiry so as to charge him with knowledge of the sale.

7. VENDOR AND PURCHASER (§ 229) — BONA FIDE PURCHASER — KNOWLEDGE.

Where the record of the sheriff's deed was seen by the attorney of plaintiff's grantor, and plaintiff's attorney, when he purchased by quitclaim, allowed his grantor's attorney to pass on the title for him, the grantor's attorney became the agent of plaintiff's attorney, so as to charge plaintiff with knowledge of the grantor's attorney of the tax sale.

8. TAXATION (§ 788) — TAX DEED — CANCELLATION — ACTIONS — SUFFICIENCY OF EVIDENCE.

In a suit to cancel a tax deed because of irregularities in the sale, in that the land was sold in bulk, evidence held not to overcome recitals in the deed that the sale was made under an execution duly issued.

9. EVIDENCE (§ 83) — DISPOSITION — REVERSAL.

It is strongly presumed that officers performed their official duty, so that it would be presumed that a sheriff held an execution under which land was sold for taxes.

10. APPEAL AND ERROR (§ 1034) — DISPOSITION — REVERSAL.

Where the theory of the case was that defendant held title through mesne conveyances from the grantee under a tax deed, and the petition sought to cancel the tax deed for defects in the sale, the parties thereby recognizing a common source of title and making the validity of the tax deed the issue, defendant's failure to introduce the mesne conveyance from the tax deed grantee to himself will not require affirmance of the judgment for plaintiff where he was not otherwise entitled to recover.

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

Action by William P. Griffin against J. E. Franklin. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Jno. A. Hope, for appellant. C. G. Shepard, for respondent.

LAMM, P. J.

This cause comes up on an appeal from a judgment of the Pemiscot circuit court in favor of plaintiff, finding and adjudging that plaintiff owns in fee simple section 18, township 19, range 11, in that county, containing 640 acres, more or less, and that defendant has no title or interest therein. Further, that a certain sheriff's deed recorded in Book A, p. 71, through which defendant claims title, is null and void and is set aside and for naught held.

Counsel do not seem to agree as to the character of the suit. Defendant's counsel contends it is an action under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to determine title; plaintiff's that it is not, "strictly speaking," an action under section 650, but "goes further." We construe his position to be that it is in the nature of a bill in equity to set aside a sheriff's sale and deed and clear away a cloud on his client's title, as well as a petition under section 650.

The petition charges: That plaintiff owns the land in fee simple; that it is wild timber land in no one's possession; that defendant claims some interest or estate in it of a nature unknown to plaintiff and which he cannot describe unless it be through a pretended sheriff's deed recorded in Book A, p. 71, and he is informed that defendant claims through that deed; that plaintiff had no knowledge (presumably at the time he acquired title) that defendant claimed through that deed or otherwise and had no way of knowing that he claimed any interest in the land. The pleader then explains the reason for his client's lack of knowledge to be that the records of Pemiscot county showed the chain of title to be in plaintiff's grantor, one J. W. Bader, and that the record of the deed through which defendant claims, to wit, Book A, p. 71, does not convey the land in question or any particular tract of land, and that said pretended deed is void for uncertainty and want of description and is not sufficient to impart notice. It is next alleged: That the deed is void because the sheriff did not sell the land in its smallest legal subdivision of 40 acres; that it shows this infirmity on its face, and shows that the sheriff sold the whole section at the same time to the same bidder; that the land was subject to subdivision; that one 40 acres would have sold for enough to pay the full amount of taxes and costs and would have sold for as much as the 640 acres brought; that the section was reasonably worth $800 at that time; that neither the plaintiff nor any of those under whom he claims was present or consented to the bulk sale; and that such sale was illegal, contrary to the rights of the true owner, and a fraud upon those rights. Next it is alleged that the deed did not convey the interests of Nat M. Erwin, but purports to convey that of Nat M. Ervin, a stranger to the chain of title, and who had no interest in the land, and that the deed is void because there was no execution issued authorizing the sale. The prayer is in accord with section 650, with an addition to the effect that, if said sheriff's deed is found to be a cloud upon plaintiff's title, then the court is asked to set it aside and cancel it, and for such other orders and decrees as it may deem meet and proper. The answer admits that defendant claims an interest in the land and denies each and every other allegation in the petition.

The case on the facts is this:

It was admitted at the trial that Nat M. Erwin was the common source of title.

To sustain the issues on his part, plaintiff introduced two properly acknowledged and recorded quitclaim deeds — one, under date of August 26, 1902, from said Erwin to John W. Bader, and, the other, from said Bader to plaintiff under date of April 25, 1904; both deeds conveying the land in controversy. At this point plaintiff rested.

To sustain the issues on his part, defendant introduced conveyances and records as follows:

(1) An original sheriff's deed from McFarland, sheriff of Pemiscot county, dated September 4, 1895, duly acknowledged and put of record on February 19, 1896. The certificate of record on the back of this deed showed that it was recorded at Book A, p. 71, and this is evidently the record referred to in plaintiff's petition. This deed had the usual recitals of sheriff's deeds on tax sales, except that it omits the years for which the taxes were assessed and the amounts due on the described tract for each year; that part of the deed being an unfilled blank, as follows:

                                 Abstract of Taxes and Interest for Total
                                   Each Year on Above Described
                Tract No.          and Numbered Tracts
                   1.           Year, 1890, $......; Year, 18__, $
                

Among other recitals in the deed are the following: That the judgment was obtained on February 14, 1895, against Nat M. Erwin for taxes and interest amounting to $16.45 on the land described; that by the judgment the state's lien was foreclosed and the real estate, "or so much thereof as may be necessary to satisfy such judgment, interests and costs, be sold according to law"; that a special execution and order of sale issued on said judgment on the 6th day of August, 1895, directed to the sheriff of Pemiscot county, and was delivered to him on that day; that on the same day he levied upon and seized the land described; and that the land was knocked off to John W. Mears on a sale during the session of the circuit court made on due advertisement (giving particulars), the said Mears being the highest bidder....