Jones v. Carter

• Decision Date: 31 March 1874
• Parties: MARY E. JONES et al., Respondents, v. JOHN C. CARTER, Appellant.
• Court: Missouri Supreme Court

56 Mo. 403

MARY E. JONES et al., Respondents,

v.JOHN C. CARTER, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

C. M. Napton, and Fagg, Dyer & Briggs, for Appellant.

I. If the tract--lots 6 and 12--contain more than 320 acres, this deed would convey so much or such a proportional interest as 320 is to the full number. Such a deed is good inter vivos. (Pipkin's Case, 29 Mo., 229; 82 Mass., 155; 7 Wend., 136; 14 Wend., 619; 46 Mo., 434; 3 Mass., 352; 1 Washb. Real Prop., 568.)

II. The reasons, which make such a deed by a sheriff void, (3 Mo., 579,) do not apply to this deed. The sheriff's sale is in invitum, and not a sale made under the order of a court, or by a court acting through its officer, the administrator.

III. It would be inequitable to allow the heirs to regain the lands freed from debts, and also recover of us, who lifted the encumbrance, $600 damages for doing so.

IV. The two deeds ought to be considered together, and if so considered, would certainly convey the whole lot. (6 Cowen, 706; Orrick vs. Bower, 29 Mo. 210.)

V. See also Davis vs. Rainsford, 17 Mass., 210; Wolfe vs. Scarborough, 2 Ohio [N. S.], 361.

E. P. Johnson, for Respondents.

I. These deeds are void for uncertainty. (Clemens vs. Rannells, 34 Mo., 579; Peck vs. Mallams, 10 N. Y., 509; Campbell vs. Johnson, 44 Mo., 247; Holme vs. Strautmann, 35 Mo., 302.)

II. The cases cited by appellant's counsel have no application whatever in this case, as they were decided inter partes on an execution of a power.

III. There is no difference in this respect between a sheriff's deed and one by an administrator. (Speck vs. Wohlein, 22 Mo., 310.)

IV. No equitable construction can be placed upon deeds by administrators, or those executed under statutory powers. (Allen vs. Moss, 27 Mo., 364; Haley vs. Bagley, 37 Mo., 363; Wannall vs. Kem, 51 Mo., 150.)

ADAMS, Judge, delivered the opinion of the court.

This was an action of ejectment for a tract of land in Pike county, where this suit was originally commenced. The case was afterward taken by change of venue to the Circuit Court of St. Louis county. The land in controversy was a portion of lot No. 12 of a league square of land, formerly owned by Luke Hoff, Senior, being United States Survey numbered sixteen hundred and eighty-five, in Township fifty-two North of Ranges one and two West, as the same was divided by commissioners under the will of said Luke Hoff among his heirs or devisees. The commissioners under Hoff's will divided the league square of land into thirteen lots, commencing with No. 1 and running to No. 13. Lot No. 12 was in the southwest part of the league square and lot No. 6 was in the north-eastern part of the league square, and those two lots were two or three miles apart.

Both parties claim title under Charles E. Perkins, as the common source. The plaintiff, Mary E. Jones, is the wife of her co-plaintiff, Henry E. Jones, and was the sole heir at law of Charles E. Perkins, who died siezed of the land in dispute, and as heir at law she claims the land.

The defendant claims under two administration sales made by the administrator of Charles E. Perkins, deceased, for payment of his debts.

These administration sales and deeds were held to be void by the Circuit Court, on account of the uncertainty in the description of the premises sold and conveyed; and this ruling of the Circuit Court raises the only question for our consideration.

The first administrator's sale was of three hundred and twenty acres, which had been appraised at $2.00 per acre, or $640.00, and was sold to Jas. W. Campbell, for $162.00, at public auction.

The description of this land, in the proceedings had in the County Court for the sale thereof and in the administrator's deed, was as follows: “Three hundred and twenty acres of and, being a part of a league square, formerly owned by Luke Hoff, Sen., deceased, known as survey No. 1685, in township 52, ranges 1 and 2 west, being parts of lots No. 6 and 12 of said league square, as the same was divided among the heirs of said Luke Hoff.”

The plat, which was made by the commissioners under the will of Luke Hoff, deceased, dividing the league square among his heirs, shows that lot No. 6 contains 173 acres, and lot No. 12 contains 374 acres, and that these two lots are two or three miles distant from each other.

It is obvious, that the description used in the administrator's deed, and in all the proceedings for the sale of the three hundred and twenty acres, was so indefinite, that the land could not be located at all. It is not shown how much was in the lot, or in what part of the lots the tract intended to be sold was located. It was too much to be all located in lot No. 6, and not enough to comprehend all of lot No. 12. If it had been...