Appeal from Sullivan Circuit Court.--HON. G. D. BURGESS, Judge.
REVERSED.
The following is the third declaration of law, asked by defendant and refused by the court, referred to in the opinion:
“If the court, sitting as a jury, finds from the evidence that the plaintiff, prior to the purchase of the land by defendant from Hughes, had the deed for the land under which he now claims, and knew that the defendant was about to consummate his purchase of the land from Hughes, and purposely withheld or concealed from defendant the fact of his own claim of title to such land, or if plaintiff, by his acts, conduct, or conversation, induced defendant to believe that he had no claim of title to such land, and that defendant was thereby induced to make such purchase from Hughes as he did make, then the finding should be for the defendant.”
(1) The land here in question is a part of the third tract mentioned and set forth in the judgment and deed. But, as to the third tract, and, indeed, as to all the tracts, except the first, no judgment was rendered as it affirmatively appears from the recitals in the deed. The rule of construction is general, and is applicable alike to judgments as well as to simple contracts and specialties that “general words of description may be modified and restricted by particular words following them.” And if, therefore, the first recital should indicate that the judgment was intended to be against the four several tracts the subsequent specific recital shows that it was against the first tract only. Freeman on Judgments, sec. 155, p. 159; Smith v. McCullough, 104 U. S. 25, 28; Sedgwick on Stat. and Con. Law, 423; Jones on Chattel Mort., sec. 77; Woodgate v. Fleet, 44 N. Y. 1, 14; People v. Johnson, 38 N. Y. 63; Freeman on Ex., sec. 42. (2) The statute in regard to delinquent back taxes prescribes what the judgment, if against the defendant, shall contain. R. S., sec. 6838. And it is plain that each tract must bear its own burdens, and the judgment must specify the amount of taxes and interest against it and for what years. One tract cannot be sold to discharge the liabilities against another, nor can any tract of land under that statute be lawfully sold unless there is a judgment against it conforming to the statutory requirement. (3) The judgment recited in the sheriff's deed is void, or no judgment at all as to the land in question. It binds or bars no one, and all acts performed under it, and all claims flowing out of it are void. Freeman on Judg., sec. 117; Freeman on Ex., sec. 20; Higgins v. Peltzer, 49 Mo. 152; Fithian v. Monks, 43 Mo. 502. (4) The evidence offered by defendant did not justify the court in giving the declaration of law asked upon the question of estoppel in pais. It is not pretended by defendant that he was induced to make his purchase by anything that plaintiff said or did, or that defendant altered his condition in any respect by the alleged acts of the plaintiff. There was, therefore, no estoppel. Bigelow on Estoppel (3 Ed.) 484; Burke v. Adams, 80 Mo. 504, 513, 514; Bales v. Perry, 51 Mo. 449, 453; Acton v. Dooley, 74 Mo. 63, 67; Spurlock v. Sproule, 72 Mo. 503.
SHERWOOD, J.
Plaintiff brought ejectment for a tract of land, the east half of northwest quarter, section two, township sixty-four, range nineteen, and on the trial he put in evidence a chain of legal title from the United States through mesne conveyances to himself. The claim of the defendant is based on a sale of the land for taxes, and, also, on the ground of estoppel. Two questions are, therefore, presented for consideration by the record. 1. Whether the trial court erred in holding that the sheriff's deed to Perkins, purporting to be based on a judgment for the sale of the land for back taxes, was void on its face in so far as it concerned the land in dispute. 2. Whether the court erred in refusing to give defendant's declaration of law on the question of estoppel.
I. As to the first point: The sheriff's deed to Perkins by its recitals, sets out that a judgment was rendered in favor of the state to the use of the collector “and against John Corbett, and against the real estate hereinafter described, for the sum of _______ dollars, for certain delinquent state, county and special taxes, and interest as hereinafter set forth, assessed and found by said court to be due upon the following described real estate, viz.:
| North half, southwest, southeast, |
19 |
And that the taxes and interest found due upon said real estate, and the years for which the same were assessed, are upon each of the above described tracts, as follows, viz.: Tract No. 1, for 1865, $0.75; 1866, $4; 1867, $12.04; 1868, $21.45; 1869, $11.42; 1870, $24.65; 1871, $25.35; 1872, $22.71; 1873, $23.16; 1874, $25.44; 1875, $20.34; 1876, $14.54; tax, $204.22; interest, $10.21; total, $214.43.” And the deed further recites that “upon which judgment a special execution and order of sale was issued from the clerk's office of said court,” and that under said execution the sheriff sold the said four tracts of land to C. E. Perkins, trustee, who paid therefor the aggregate sum of two hundred and ninety dollars.
The land here in question is a part of the third tract mentioned and set forth in said judgment and deed. But as to said third tract, and, indeed, as to all the tracts, except the first, no judgment was rendered as it affirmatively appears from the recitals in the deed. It is at first stated that judgment was rendered “against the real estate hereinafter described for the sum of ______ dollars.” The recitals then specify that “the taxes and interest found due upon said real estate and the years for which the same were assessed, are upon each of the above described tracts as follows, viz.” etc. Then follows the amounts and the respective years that taxes were found and adjudged to be due against said tract number one, but nothing appears against the other tracts, or either of them.
The rule is well settled that “general words of description may be modified and restricted by particular words following them.” Jones on Chat. Mort., sec. 377; Smith v. McCullough, 104 U. S. 25; Freeman on Judg., sec. 155. Here, it will be observed, that according to the express recital and particular words in the sheriff's deed, the taxes and interest for certain years were only assessed against but one tract, to-wit: “ Tract No. 1.” And as the tract belonging to plaintiff was not embraced within that description, it follows as the general words are controlled by the particular words that no valid judgment appears by the face of the deed to have been rendered for taxes against the tract in controversy.
But, further, should we attempt to rely on the general words in the beginning of the deed that reliance would be vain, for the amount of the judgment against the tract in litigation is not set forth. It is true that under the statute, by virtue whereof the sale was made, no form of deed is prescribed (sec. 6839), yet the deed must contain apt and appropriate recitals in order that it may be prima facie evidence of such recitals. “No form being prescribed, the form must be adjusted to the facts of the case.” Einstein v. Gay, 45 Mo. 62. And section 6838 requires that, “The judgment, if against the defendant, shall describe the land upon which taxes are found to be due, shall state the amount of taxes and interest found to be due upon each tract or lot, and the year or years for which the same are due, up to the rendition thereof, and shall decree that the lien of the state be enforced, and that the real estate, or so much thereof as may be necessary to satisfy such judgment, interests and costs, be sold, and a special fieri facias shall be issued...
