McPike v. Allman

• Decision Date: 31 October 1873
• Parties: AARON MCPIKE, Respondent, v. WILLIAM J. ALLMAN, Appellant.
• Court: Missouri Supreme Court

53 Mo. 551

AARON MCPIKE, Respondent,

v.WILLIAM J. ALLMAN, Appellant.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Pike Circuit Court.

E. Robinson, for Appellant.

I. The deed from the sheriff of Ralls Co. to McPike was on its face so vague and uncertain as to fail to describe any land whatever, and was, therefore, of itself, void, (2 Caines 65; 2 Wash. Real Prop. side p. 622; 13 Johns., 67; Id. 532), and the other evidence introduced did not supply the want of a proper description in the said deed, or cure the defect. (34 Mo., 579.)

II. The deed should have described the land with such certainty, as that it could have been located and identified from the description itself; and in the event of a failure to do so, the omission could have been supplied only by evidence showing, that the “80 acres” of land sued for was generally known, in the community where it was sold, by the particular description given in the said sheriff's deed. This is as far as the courts have ever gone. (7 Mo., 531; 8 Mo., 177; 15 Mo., 309; Clemens vs. Rannells, 34 Mo., 579.) But there was no testimony in the cause which gave any certainty to the description. The testimony did not tend to prove, that the description given in the sheriff's deed, “80 acres, part of the west half of Sec. 31, Tp. 53, Range 5,” had acquired any meaning in the community as descriptive of any particular tract of land whatever. The testimony did not tend to show that any particular “80 acres” was indicated by such description. The evidence showed that Jno. B. Crow owned “83 12-100 acres” in the west half of Sec. 31, but the proof did not tend to show what particular part, indeed, did not tend to show, that any particular part of said “83 12-100 acres” was indi cated or known by the description, “80 acres, part of W. 1-2 of Sec. 31, Tp. 53, R. 5.

III. As the testimony did not tend to prove the location or identity of the “80 acres” called for in the sheriff's deed, the court erred in admitting said deed in evidence. (See 34 Mo., 579.)

Fagg & Dyer and H. W. Biggs, for Respondent.

I. There can be no doubt as to the propriety of admitting extrinsic evidence to show the location and exact description of the land intended to be conveyed. (Hart vs. Rector, 7 Mo., 531; Bates vs. The Bank, 15 Mo., 309; 17 Mo., 583; Lisa vs. Lindell, 21 Mo., 127.)

In the case of Clemens vs. Rannells, 34 Mo., 579, relied upon by the appellant, the extrinsic evidence offered by plaintiff to explain the description in the sheriff's deed was passed upon by the court trying the case, as insufficient, and the deed was excluded.

In case of Webster vs. Blount, 39 Mo., 500, the finding of the jury upon the extrinsic evidence introduced was sustained. The very object of permitting oral testimony is to identify the premises sold. This case is almost identical with the last case cited. In that case the description in the sheriff's deed was “one hundred and ten acres part of the N. W. 1-4 of Sec. 26 in T. 59 R. 34.” Here the description is “80 quarter acres, part of the west half of Sec. 31, T. 53, R. 5.” The proof tended to show most conclusively, that Crow had no other land in that section; that this south end of the fractional quarter in question was known in the community as Crow's land. The substance of the description of the land, as sold, really was all the interest and claim of Crow in that particular quarter section. That was sufficiently known in the community to prevent parties interested, or bidders at the sale, from being deceived as to the location of the premises sold. The quarter section, the number of the section itself, township and range, are all accurately given. The quantity stated is not to be taken in this case as an essential part of the description.

VORIES, Judge, delivered the opinion of the court.

This action was brought in the Ralls Circuit Court, from which it was transferred for trial, by the agreement of e parties, to the Pike Circuit Court.

The action was ejectment brought to recover possession of a tract of land described as being “eighty acres off the south end of the west half of section thirty-one, township fifty-three, range five west.”

The answer denied all the material allegations of the petition.

At the trial the plaintiff read in evidence a patent from the United States to Otho Pool, dated October 30, 1857, for the west half of section 31, township 53, range 5 west, containing 203 12-100 acres; also, a deed from Pool and wife to John B. Crow for the same land. The plaintiff then offered to read in evidence a deed from the Sheriff of Ralls county to the plaintiff, dated the-- day of August, 1869, purporting to convey to plaintiff a tract of land described as follows: “80 acres, part of the west half of section 31, township 53, range 5,” which deed recited that the sale was made by virtue of an execution against John B. Crow, and in favor of Aaron____, issued on a judgment rendered in Louisiana (Pike county) Court of Common Pleas. To the introduction of the deed in evidence the defendant objected, on the ground of the vagueness of the description of the land, and that no land was described. This objection was sustained by the court. The plaintiff then, as preliminary to the introduction of said sheriff's deed, offered in evidence a deed from John B. Crow and wife to Robert W. Thompson, for 120 acres off from the north end of the west half of section 31, township 53, range 5 west. To the reading of which deed the defendant objected. His objection being overruled by the court, he excepted. The plaintiff then introduced, as a witness, one Perry A. Curry, who testified that some short time before the sale of the 120 acres to Robert W. Thompson by John B. Crow, he was employed by Crow to survey off from the north end of the west half of section 31, township 53, range 5 west, and did survey 120 acres off from the north end of said half section; that Crow told him at the time, that he owned the remainder of said half section, containing 83 12-100 acres; that there were no improvements on any part of said half section at the time. The defendant, at the time, objected to the evidence given by said witness, but the court overruled his objection, and the defendant excepted.

Robert W. Thompson was then examined on the part of the plaintiff, and testified, that he bought 120 acres of land off from the north end of the west half of section 31, township 53, range 5 west, from John B. Crow. The remainder of said half section, containing 83 12-100 acres, was south of the land purchased by witness. As to the general reputation in the community as to who was the owner of the remainder of said half section, after the purchase of witness, he could not say. Witness knew it belonged to Crow, but he had never heard it talked of in the community. Otho Pool, a witness for the plaintiff, stated, that he had entered the west half of section 31, township 53, range 5 west, and sold it to John B. Crow, who sold 120 acres off from the north end to Robert W. Thompson; that it was known in the community, that the remainder of the land belonged to Crow.

On cross-examination the witness further stated, that he lived some six miles from the land in controversy; that all of section 31, township 53, range 5 west. was prairie land, had no timber on it; that none of the land adjoining the land in controversy was inclosed in 1869, at the time of the sheriff's sale to plaintiff, the nearest fence to the land being one-fourth mile distant; did not know to whom the land lying immediately west of the land in controversy belonged in 1869; it was wild land and the owner unknown. In 1869, when the land in controversy was sold to plaintiff, it was bare prairie land, without fencing or improvements, and without timber or anything to designate it from other prairie lands, and was not known in the community by any particular description or designation; was not known by the description of “eighty acres, a part of the west half of section 31, township 53, range 5.” Witness had known the land since 1862, when he sold it to Crow; the land lies south of the land sold by Crow to Thompson; was called the Crow land.

The plaintiff being examined, stated, that he bought the land under an execution against John B. Crow.

The location of this land was known in the community; it was south of the land sold by Crow to Thompson; Crow had eighty-three acres there; he knew the land and its location by reason of his having been with the surveyor several years ago when he surveyed the west half of said section 31 for Crow, and some lands in the neighborhood for plaintiff. The land was known by the community to be Crow's land before he bought it at sheriff's sale, and by some persons afterwards. The land was about eighteen or twenty miles distant from New London, the county seat, where it was sold. In the neighborhood of New London he did not know that anything was known about the locality of the land, or to whom it belonged. It was good land, was worth from eight to ten dollars per acre, and witness did not know whether Crow had other land in the neighborhood or not in 1869.

After the introduction of this parol evidence, the plaintiff again offered to read the said deed made by the sheriff to plaintiff, in which the land was described as being “eighty acres, a part of the west half of section 31, township 53, range 5.”

The defendant again objected to the reading of said deed in evidence, on the ground that the description of the land was too vague. This objection was overruled by the court, and the deed read in evidence, to which he at the time excepted.

The defendant then introduced one Parker as a witness, whose evidence tended to prove, that he knew the land in controversy, and was well acquainted in the neighborhood where it was situate, and had lived in five or six miles of the land for thirty years; that the land was never known by the description of “eighty acres, a part of the west half of section thirty-one,...