Kalbach v. Mathis

• Decision Date: 02 February 1904
• Parties: KALBACH v. MATHIS et al.
• Court: Missouri Court of Appeals

78 S.W. 684

104 Mo. App. 300

KALBACH v. MATHIS et al.

Court of Appeals at St. Louis, Missouri.

February 2, 1904.

ALTERATION—EXPLANATORY EVIDENCE—SUFFICIENCY — EQUITY — APPEAL— WASTE—INJUNCTION.

1. In a sheriff's deed the number of the range in the first description appeared to have been erased, and the figure "7" inserted in darker ink than the balance. In the second description the range number "five," as originally written, was crossed with an ink line, and the number "seven" written above in darker ink. Held, that while the presumption was that the alterations were made before acknowledgment and delivery, the appearance of the deed excited suspicion, and the court properly admitted explanatory evidence.

2. Evidence examined, and held to sustain a finding that alterations in the description in a sheriff's deed for taxes were made by the grantee after its execution, acknowledgment, and delivery.

3. Though, on appeal in equity, the court may review the evidence, it will defer somewhat to the opinion of the trial court.

4. In a suit to enjoin cutting of timber on land claimed by plaintiff under a sale for taxes it was found that he had made material alterations in the sheriff's deed after its acknowledgment and delivery to him. Held, that while plaintiff may have been entitled to relief as equitable owner, notwithstanding the alterations, provided the execution, levy, and notice of sale in the tax proceedings did not misdescribe the land, the appellate court could not grant such relief in the absence of the execution in the record on appeal.

Appeal from Circuit Court, Butler County; J. L. Fort, Judge.

Action by Harrison Kalbach against Rolla Mathis and others. From a judgment for defendants, plaintiff appeals. Affirmed.

E. R. Lentz, for appellant. W. N. Barron, for respondents.

GOODE, J.

The purpose of this suit is to enjoin the defendants from cutting timber on the north half of the southeast quarter of section 2, township 25, range 7 east, in Butler county. The plaintiff alleged that he was the owner of the land. His chain of title consists of a tax deed executed by the sheriff of Butler county to Aaron Mast, pursuant to a sale under a judgment for taxes against Milo P. Marble, and a subsequent warranty deed from Mast to the plaintiff. The judgment for taxes was rendered May 9, 1890, at which time Marble held the title to the land, as was admitted. The defendants asserted a right to cut and remove timber from it by virtue of a parol license from Marble. At the trial the tax deed was offered in evidence by the plaintiff, but was excluded by the court on the ground that it had been altered in a material respect by Mast, the grantee, after its execution, acknowledgment, and delivery. The result was that plaintiff's suit failed, and he appealed, assigning for error that the court wrongly excluded the deed. The deed has been submitted, with the consent of both parties, for our inspection. We find that it was executed on a blank form of the kind in common use in conveying lands sold under judgments for taxes. In the first description of the land that occurs in the deed the section, township, and range appear in figures in parallel columns. In the column for the range number the figure "7" appears, but it is apparent at a glance that there has been an erasure of some figure previously there, and "7" inserted on the abraded surface. The marks of the tool by which the erasure was made are visible, and the figure "7" appears to be in blacker ink than the rest of the deed. The second description, to wit, the granting clause, has the range written out in full, and it was originally written as "five east." The word "five" was erased by an ink line drawn across it, and the word "seven" written above it in much blacker ink than the other portions of the deed. The clerk's entry of the acknowledgment taken in open court under date of November 15, 1890, is contained in the bill of exceptions, having been introduced by the defendants, and is as follows: "Now comes Samuel Gardner, sheriff of this county, and in open court, before the judge thereof, acknowledges the execution of a deed as such sheriff to A. Mast, for the real estate described in said deed as follows, to-wit: the N. ½ of the S. E. ¼ of section 2, Township 25, Range 5, which was sold at this term of court as the property of Milo P. Marble, Silas B. Jonas, O. P. Hedges, ...