Ozark Land and Lumber Company v. Franks
| Decision Date | 12 June 1900 |
| Citation | 57 S.W. 540,156 Mo. 673 |
| Parties | OZARK LAND AND LUMBER COMPANY, Appellant, v. FRANKS et al |
| Court | Missouri Supreme Court |
Appeal from Oregon Circuit Court. -- Hon. W. N. Evans, Judge.
Affirmed in part and reversed and remanded in part.
J. D Brooks, Botsford, Deatherage & Young for appellant.
(1) Inasmuch as the deed in naming Francis Fox, the grantor described him as the patentee of the land conveyed, and as the other record evidence showed that said Fox was not the patentee of any lands in any other section 26, in range 5, in Oregon county, said deed, in view of said facts, was sufficient to convey said land in section 26, township 25 range 5. The reference in the granting clause of the deed by Fox to him as the patentee of the lands conveyed made his deed good, if he was not the patentee, as the record evidence showed, of any other lands in any section 26, range 5, except said south half of the southeast quarter thereof. Shelton v. Maupin, 16 Mo. 124; Webster v. Blount, 39 Mo. 500; Nelson v. Brodback, 44 Mo. 596; Dolde v. Vodicka, 49 Mo. 98; Gitt v. Eppler, 56 Mo. 138; McPike v. Allman, 53 Mo. 551; Cornwell v. Thurston, 59 Mo. 156; Clamorgan v. Railroad, 72 Mo. 139; Brown v. Gibson, 82 Mo. 529; Brown v. Walker, 85 Mo. 262; Coe v. Ritter, 86 Mo. 277; Tetherow v. Anderson, 63 Mo. 96; Hammond v. Johnston, 93 Mo. 198; Bollinger Co. v. McDowell, 99 Mo. 632; Bray v. Adams, 114 Mo. 487; Campbell v. Wood, 116 Mo. 196; Prior v. Scott, 87 Mo. 303. (2) It was proper, even after the commencement of this suit, for the sheriff who had made conveyance of the land in controversy to one Boyd to make the amendatory deed, read in evidence, to the plaintiff as the assignee of Boyd of the title for the purpose of correcting his first deed. Nat. Bank v. Hughes, 10 Mo.App. 7; Galbreath v. Newton, 45 Mo.App. 312; Commission Co. v. Estep, 63 Mo.App. 540; State ex rel. v. Stead, 64 Mo.App. 28; Corby v. Burns, 36 Mo. 194; Wannell v. Kem, 51 Mo. 150; Scruggs v. Scruggs, 46 Mo. 271; McClure v. Wells, 46 Mo. 311; Groner v. Smith, 49 Mo. 318; Kiley v. Croner, 51 Mo. 541.
A. P. Couch and A. H. Livingston for respondents.
(1) It is not contended by plaintiff that the sheriff's deed introduced by them, reciting that the judgment was rendered against M. Morby and signed by the clerk in place of the sheriff was valid for any purpose. It is absolutely void. Then their contention is, that a former sheriff -- some twenty years before -- on his own motion, could come in during the trial, and execute a deed to plaintiff and make for it a title it never had before. The former purported deed was made to T. J. Boyd, and the so-called amended deed was made to plaintiff. What right or power did this former sheriff have to determine that plaintiff held under Boyd? But suppose the sheriff had such power, how could such deed affect defendant when he holds under a deed executed in 1895 by Michael Marley and wife -- the true record owner of the land. The proposition that plaintiff has any title to this tract of land seems to us absurd. While it may be conceded that a sheriff may make an amended deed to the purchaser, even after the expiration of his term of office, yet it has never been held that he could make such deed without the supervision and order of the court out of which the process issued on which such deed was based, other than the one to whom the original deed was made. (2) If the amended deed, in the case at bar, had been in all things regular and valid, it could not affect respondent, who was an intervening purchaser without notice. Strain v. Murphy, 49 Mo. 337; Lincoln v. Thompson, 75 Mo. 613; Davis v. Green, 102 Mo. 180. (3) The record of the Fox deed did not impart notice that this land had been conveyed by Fox to Foster. Cass Co. v. Oldham, 75 Mo. 50; Galewood v. House, 65 Mo. 663.
This is an action by plaintiff a corporation, against defendants for trespass in cutting and carrying away from lands in Oregon county, of which plaintiff alleges in its petition that it is the owner, of timber standing and being thereon, of the alleged value of $ 1,325, and to enjoin and restrain defendants and each of them from cutting timber or removing the same from the lands in question.
A temporary restraining order was granted upon the petition.
The answer was a general denial.
At the trial it was conceded by defendants that plaintiff had title to all the lands described in the petition except the west half of section thirty-four, and the south half of the southeast quarter of section twenty-six, in township twenty-five, of range five, from which last named tracts all the timber in question was cut. The case was tried by the court without the intervention of a jury.
No objection was taken to the petition.
The testimony on the part of plaintiff tended to show that the timber cut and removed from the land by defendants was of about the value of one thousand dollars.
For the purpose of showing title in plaintiff to the west half of said section thirty-four, plaintiff read in evidence the official plat of Oregon county, from which it appears that this tract of land was entered by Patrick L. Sheridan; the record of a warranty deed from Patrick L. Sheridan to Michael Marley, of Highland county, Ohio, dated November 13, 1858, and filed for record in the recorder's office of Oregon county on the eleventh day of January, 1861; the record of a sheriff's deed from W. McClelland, sheriff of Oregon county, Missouri, to T. J. Boyd, which said deed was based on an execution issued on a judgment of said Oregon County Circuit Court, rendered on the 17th day of May, 1879, for back taxes for the years 1873, 1874, 1875 and 1876 on said land. This deed was in the usual form, and purported to be given by W. McClelland, sheriff, but was signed, as appeared from the record, by M. G. Norman, sheriff; was acknowledged in open court by said W. McClelland, sheriff, which acknowledgment was certified by M. G. Norman, clerk, and also marked, "Filed October 11th, 1880, by M. G. Norman, recorder." Said deed recited that said judgment was rendered against Patrick L. Sheridan, P. R. Sheridan and M. Morby, and that execution had been issued on said judgment against P. R. Sheridan, dated 23d of September, 1879.
Plaintiff next read in evidence the judgment rendered in the case of W. McClelland, successor to J. J. Sitton, collector, against P. R. Sheridan and P. L. Sheridan and M. Marley on the 17th day of May, 1879, for the back taxes for the years of 1873, 1874 and 1876 on said west half of section thirty-four. Said judgment recited that said defendants, P. L. Sheridan, P. R. Sheridan and M. Marley, were duly summoned by publication, and that said lands should be sold to pay the amount of said back taxes, and that special execution issue therefor, and that execution issued September 25, 1879.
Plaintiff then read in evidence, over the objections of defendants, an amended sheriff's deed from said W. McClelland, late sheriff of said Oregon county, to the Ozark Land & Lumber Company, as the assignee by mesne conveyances of T. J. Boyd, the original purchaser at said tax sale. Plaintiff also offered evidence tending to show, that all the original papers in the suit on which said suit for back taxes were based were lost or destroyed and could not be found, but that the same had been at one time examined and an abstract of title to the land made by one L. L. Munsell, which abstract showed that said original papers showed that said suit was against M. Marley, that the order of publication was against M. Marley, and that the execution and notice by publication of sale were all against M. Marley.
Said amended sheriff's deed was as follows:
Whereas on the 17th day of May, A. D. 1879, judgment was rendered in the circuit court in the county of Oregon, State of Missouri, at the relation and to the use of , collector of the revenue of Oregon county, for the State of Missouri, and against P. R. Sheridan, P. L. Sheridan and M. Marley, for the sum of sixty and 99-100 dollars, for certain delinquent state, county and special taxes and interest, as hereinafter set forth, assessed and found by said court to be due and unpaid upon the following described real estate, viz: Tract No. 1: west half of section thirty-four, township twenty-five, range five, and that the taxes and interest found due upon said real estate and the years for which the same were assessed, are upon the above described tract as follows, viz: Year 1873, $ --; year 1874, $ --; year 1875, $ --; year 1876, $ 60.99, and also certain costs which have been taxed at the sum of twenty-three dollars and fifty-five cents, which said several sums of taxes, interest and costs were declared by said court to be a lien in favor of the State of Missouri upon the above described tracts of real estate. And whereas it was decreed by said court that the lien of the State of Missouri upon said real estate for said taxes, interest and costs be enforced, and that the said real estate, or so much thereof as may be necessary to satisfy such judgment, interest and costs, be sold according to law, upon which judgment a special execution and order of sale was issued from the clerk's office of said court in favor of the State of Missouri to the use of the said collector and against the said P. R. Sheridan, P. L. Sheridan and M. Marley, dated the 23d day of September, A. D. 1879, directed to the sheriff of the county of Oregon, and directing said sheriff to...
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