De Paige v. Douglas

• Decision Date: 31 March 1911
• Citation: 136 S.W. 345,234 Mo. 78
• Parties: DE PAIGE et al. v. DOUGLAS et al.
• Court: Missouri Supreme Court

136 S.W. 345

234 Mo. 78

DE PAIGE et al. v. DOUGLAS et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1911.

1. APPEAL AND ERROR (§ 756)—BRIEF BY RESPONDENT —COMPLIANCE WITH RULES.

If respondent elects to file a brief, he must comply with the appellate rules.

2. TAXATION (§ 776)—TAX DEED—CONSTRUCTION —PROPERTY CONVEYED.

A tax deed in its reciting part referred to "tract No. 1," "tract No. 2," and "tract No. 3," and stated that the sheriff exposed to sale "the above-described real estate, and M. being the highest bidder for the following described real estate, viz.," naming consecutively by section and range three tracts, and continuing, "960 acres, for the sum of two hundred and twenty dollars, the said last above described tract was stricken off and sold to the said M. for the sum bid therefor by him as above set forth," and further recited that the sheriff thereby transferred and conveyed to M. "all the above-described real estate so stricken off and sold to him." The taxes, including costs, amounted to about $50, and the tract No. 3 referred to in the deed contained 320 acres. Rev. St. 1909, § 11,499, provides that the decree for the sale of land for taxes shall order that the real estate or so much thereof as may be necessary to satisfy the judgment, interest, and costs be sold, and section 2206 requires the sheriff in levying execution upon realty to divide the property, if possible, and sell so much thereof as will satisfy the execution. Held that, construed in view of the statute and of the great disparity between the amount of the taxes and the acreage contained in all of the tracts, only the 320-acre tract last referred to was conveyed thereby.

3. DEEDS (§ 90)—CONSTRUCTION.

A maxim applicable to the construction of deeds is that the explanation should arise from the whole subject-matter.

4. EVIDENCE (§§ 10, 18)—JUDICIAL NOTICE— VALUE OF LAND.

While the Supreme Court cannot take judicial notice of the value of a particular tract of land, it can take judicial notice of the general topography, climate, and soils of the state; they being geographical facts.

5. EVIDENCE (§ 83)— PRESUMPTIONS — OFFICIAL PROCEEDINGS.

A sheriff is presumed to act according to statute in selling land at judicial sales as well as in performing his general official duties.

6. TAXATION (§ 769)—TAX DEEDS—CORRECTION —CORRECTION IN EQUITY.

A defective tax deed cannot be corrected in equity.

7. TAXATION (§ 769)—TAX DEEDS — CORRECTION —EFFECT.

In view of Rev. St. 1909, § 2239, providing that when any officer dies or removes from the state, etc., after selling property and before executing the conveyance or after executing a defective conveyance, the court shall, upon petition, order the sheriff then in office to execute a deed which shall have the same effect as if made by the officer so deceased, etc., a tax deed corrected pursuant to statute relates back to the time of the sale and becomes effective from that time.

8. DEEDS (§ 98)—CONSTRUCTION—LANGUAGE IN CONSTRUING DEED.

Written words are given more effect than printed words in case of doubt or repugnancy.

9. STATUTES (§ 182)—CONSTRUCTION.

Where the meaning of a law is made doubtful by ambiguities, that interpretation should be accepted which is most consonant with equity, especially where it conforms with the general legislative intent.

10. TAXATION (§ 772) — TAX DEEDS — CONSTRUCTION.

The same presumption of intendment cannot be inferred in case of tax deeds as in case of ordinary conveyances.

11. DEEDS (§ 95)—CONSTRUCTION.

General words of description may be restricted by particular words.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by Emma De Paige and others against Samuel Douglas and another. From a judgment for defendants, plaintiffs appeal. Reversed and remanded for judgment for defendants in part and for plaintiffs in part.

J. W. Chilton and Jas. Orchard, for appellants.

LAMM, J.

Plaintiffs sue in the Shannon circuit court under section 650, R. S. 1899 (now 2535, R. S. 1909, as amended), to try and determine title to three tracts of land, aggregating 960 acres, in that county situate. Judgment going for defendants for all the land, plaintiffs come up.

The pleadings are conventional. Plaintiffs, claiming ownership in themselves, charge that defendants make some adverse claim of title. Defendants answer by way of admitting their own claim and denying the other allegations. For convenience let us designate the parcels of land as A, B, and C. That plan makes tract A the W. ½ of section 9; B the W. ½ of section 14; C the N. ½ of section 17, all in township 30, range 3, in said county. Respondents submit their case without a brief. A growing course calling for some salutary observations, we now pause to make by the by, viz.:

A respondent is at liberty to stand mute here. Bank v. Hutton, 224 Mo., loc. cit. 53, 123 S. W. 47. Our rules do not invite him to do so. It is not the beaten way, but (e converso) may be the way to be beaten. The index finger of wisdom does not point down that way, because such course breeds doubt and confusion. Verily respondents' silence may mean one or more of several things. Witness: It may mean his judgment nisi is so palpably wrong that it admits of nothing of substance to be said in its defense; or that it is not worth defending and he abandons his case; or that he elects to shift the burden from his own shoulders over to the shoulders of the court in briefing his case; or that he takes his chances in the chapter of accidents and "trusts to luck"; or that his judgment nisi is so manifestly right that nothing worth noticing can be said against it; or that what his antagonist does say against it is a mere "mass of things, * * * but nothing wherefore"; or that the court needs no aid from counsel. Finally, his silence may mean that, as the judgment of a court of record is presumed to be right until the contrary clearly appears, he chooses to rest solely and only on the friendly, ample (and sometimes cold) bosom of that presumption, and, so resting, goes to sleep as a tired infant on the mother's breast. Obviously respondents should brief their side of the case as appellate rules contemplate. Hector v. Mann, 225 Mo. 241, 124 S. W. 1109.

Sundry questions were raised by plaintiffs below, but their case on appeal hangs on a single thread. The common source of title is one D. F. De Wolf, deceased. Plaintiffs De Paige and De Wolf are his sole heirs. If their ancestor owned the land at his death, they became owners by descent cast. Presently they sell and convey by a deed put of record an undivided one-half interest to their coplaintiff, Chilton. If their title be good, his is. As said, their title is good by descent if D. F. De Wolf was owner when he died. Under this record, he was such owner unless title passed out of him into one Thomas McGlashan in 1899 by a tax sale and tax deed following. If the title passed to Thomas by that sale and deed, then defendants hold title under Thomas. Attending to that phase of the case, the record shows that in 1898 tracts A, B, and C became delinquent for the taxes of 1897, aggregating $23.16, distributed as follows: To A, $7.53; to B, $8.10; to C, $7.53. On suit brought and judgment got on constructive service in the Shannon circuit court against D. F. De Wolf for said taxes and costs—the latter taxed at $26.38—execution issued, and levy, advertisement, and sale followed in due course. Thomas McGlashan was the successful bidder at the sum of $220, and received a sheriff's deed. The sole question held in judgment is: "Did that deed convey title?" Plaintiffs concede it conveyed C, but contend it did not convey A and B. The trial court held it conveyed A and B as well as C. If plaintiffs are right in their insistence, the judgment should be reversed and the case remanded. Contra, if the trial court is right, the judgment should be affirmed.

Our conclusion is the judgment was wrong. This because the sheriff's deed by apt narration in its reciting part refers to "tract No. 1," "tract No. 2," and "tract No. 3," said numerals, "1," "2," and "3," referring to the same tracts as our letters A, B, and C consecutively. Finally, said deed recites that on the 13th day of September, 1899, between certain hours agreeably to advertisement at the courthouse door in Shannon county and during the session of the circuit court at its September term, 1899, the sheriff did (quoting) "expose to sale at public auction, for ready money, the above-described real estate, and Thomas McGlashan being the highest bidder for the following described real estate, viz.: W. ½ S. 9, T. 30, R. 3, W. W. ½ S. 14, T. 30, R. 3, W. N. ½ S. 17, T. 30, R. 3, W., 960 acres, for the sum of two hundred and twenty dollars, the said last above described tract was stricken off and sold to the said Thomas McGlashan for the sum bid therefor by him as above set forth. Now, therefore, in consideration of the premises and of the sum of two hundred and twenty dollars, to me the said sheriff in hand paid by the said Thomas McGlashan, the receipt whereof, I do hereby acknowledge, and by virtue of the authority in me vested by law, I, J. A. Deatherage, sheriff as aforesaid, do hereby assign, transfer and convey unto the said Thomas McGlashan all the above-described real estate so stricken off and sold to him that I might sell as sheriff as aforesaid, by virtue of the aforesaid judgment, execution and notice. To have and to hold the right, title, interest, and estate hereby conveyed unto the said Thomas McGlashan, his heirs and assigns forever, with all the rights and appurtenances thereto belonging. In witness whereof," etc. Observe, the first tract described corresponds to A, the second to B, the third to C, unless the phrase "said last above described tract" means A, B, and C —i. e., the land in solido. The just determination of the merits of our case therefore hinges on the construction to be given to the...