Pruitt v. St. Johns Levee & Drain. Dist.
| Citation | 106 S.W.2d 467 |
| Decision Date | 21 June 1937 |
| Docket Number | No. 33664.,33664. |
| Court | Missouri Supreme Court |
| Parties | TOM PRUITT, Appellant, v. ST. JOHNS LEVEE & DRAINAGE DISTRICT, CORN-COTTON LAND COMPANY, EDWARDS LAND & TIMBER COMPANY, Corporations, W.S. EDWARDS, E.F. SHARP, L.C. PHILLIPS and R.F. BAYNES. |
Appeal from Mississippi Circuit Court. — Hon. Frank Kelly, Judge.
AFFIRMED.
Ashby & Banta for appellant.
(1) The court erred in ignoring the testimony of Frank K. Ashby that he was the owner in fee simple of a one-half interest in said lands and that the Corn-Cotton Land Company was merely a straw party holding title for him, and that he had been given a deed by the Corn-Cotton Land Company, which deed had been lost or destroyed, and did not show in the record title. The answer of Corn-Cotton Land Company denying they had any right, title or interest in said property having been placed on file and offered in evidence and the mortgage conveying all right, title and interest to said Tom Pruitt also having been offered. A tax proceeding, including deed, are of no force or effect against any interest a person may have in land, if such person is not made a party to the tax suit. Wheeler v. Weever, 6 S.W. 220, 93 Mo. 430; Scarry v. Bunker-Culler Lbr. Co., 136 S.W. 294, 233 Mo. 686; Paxton v. Fix, 190 S.W. 328; Lovell v. Homes, 219 S.W. 939; Little River Drain. Dist. v. Sheppard, 7 S.W. (2d) 1013, 320 Mo. 341. (2) The court erred in not finding that the deed in tax suit 5203, being St. John Levee & Drainage District, a corporation, against Thomas T. Lindsay and B.E. Slawson was void, because each and every tract of land therein was described as 14 acres, instead of 40 acres, as shown in the petition. Tax deeds that do not describe land so as to render its location and identity positive, are void for uncertainty. Western v. Flanagan, 25 S.W. 531, 120 Mo. 61; McCormick v. Parsons, 92 S.W. 1162, 195 Mo. 91; Roth v. Gabbert, 27 S.W. 528, 123 Mo. 21; Sligo Furnace Co. v. Keiffer, 229 S.W. 188; Hill Const. Co. v. Goldsmith, 237 S.W. 860; Jamison v. Wells, 7 S.W. (2d) 347. (3) The court erred in not finding the deed in tax suit 5204, being St. John Levee & Drainage District, a corporation, against H.H. Cornwall and B.E.C. Slawson was void for the reason that the order of publication described ten tracts of land, the deed shows ten tracts were sold, and the deed recites "both of the above described tracts sold for cash," when it is impossible to determine what tracts are meant by "both tracts," and for another reason, said deed was void because it recited a cash consideration, when an admission was made that no cash consideration was paid. A sheriff's deed which describes a number of tracts and then states "both of above described tracts sold for cash," is void for uncertainty. Cases under Point (2); Campbell v. Johnson, 44 Mo. 247; Davidson v. Laclede Land & Imp. Co., 161 S.W. 686, 253 Mo. 223; Miller v. Corpman, 257 S.W. 428, 301 Mo. 589. (4) The court erred in not finding the deed in tax suit 5839, being St. Johns Levee & Drainage District, a corporation, against H.H. Cornwall, William Holloway, Frank K. Ashby, E.C. Webster and A.H. Marshall, was void for the reason that the petition shows for ten tracts and the judgment was for $1162.85; the order of publication is not dated; the sheriff's deed in said cause was not dated, the date of sale was February 6, 1928, and said deed was not filed until February 6, 1929; the lands described in sheriff's deed were the lands in Section 10, over which this lawsuit was brought and then says, "northwest quarter, Section 9, Township 23, Range 15 east, New Madrid County," and the deed recites in the granting clause thereof "and said last above tract was stricken off and sold." DePaige v. Douglas, 136 S.W. 345, 234 Mo. 78; Laclede Land & Imp. Co. v. Schneider, 177 S.W. 388; Swift v. Buford, 217 S.W. 980, 280 Mo. 432; Sligo Furnace Co. v. Hogue, 229 S.W. 190. (5) The court erred in not finding the title of a one-half interest in the defendant, Corn-Cotton Land Company, should he believe that there was not an equitable title in Frank K. Ashby, which passed to Tom Pruitt, or that a deed had ever been made by Corn-Cotton Land Company to said Frank K. Ashby. Cases under Point (1).
Edward F. Sharp for respondent.
(1) The description in the tax proceedings and sheriff's deed are good, the rule is that a recital of quantity following a particular description is merely descriptive and does not determine the quantity sold. Campbell v. Clark, 6 Mo. 619; Gray v. Temple, 35 Mo. 494; Campbell v. Johnson, 44 Mo. 247; Wood v. Murphy, 47 Mo. App. 539; Porter v. Robinson, 29 S.W. (2d) 133; Hendricks v. Vivion, 118 Mo. App. 421. (2) A purchase made or property actually in litigation, pendente lite even for a valuable consideration and without notice affects the purchaser in the same manner as if he had actual notice. Hence the pretended deed from Ashby to Rolwing and the deed of trust from Ashby to Mrs. Goodman were both subject to the then pending tax suits Nos. 5204 and 5203, both of which were filed December 28, 1922, and judgment taken October 7, 1927, and January 31, 1927, respectively. Carr v. Cates, 96 Mo. 274; Tice v. Hamilton 188 Mo. 299; Mo. State Life Ins. Co. v. Russ, 214 S.W. 863; Alexander v. Hoffner, 20 S.W. (2d) 898. (3) The general rule is that a conveyance by mortgagor to the mortgagee extinguishes the debt. Petrie v. Reynolds, 219 S.W. 938; Curry v. Lafon, 133 Mo. App. 163, 113 S.W. 246; 15 Am. & Eng. Encyclopedia of Law, p. 321; 27 Cyc., pp. 1378-1379; Citizens Trust Co. v. Going, 288 Mo. 505, 232 S.W. 1000; Scott v. Hill, 50 S.W. (2d) 112; Hospes v. Almstedt, 13 Mo. App. 273. (4) It was entirely proper for the court to permit the defendant to procure a corrected deed as was done in this case. Griffin v. Franklin, 224 Mo. 667; Brannock v. McHenry, 252 Mo. 11. And the former sheriff had the right and authority to make the corrected deed. Land & Timber Co. v. Franks, 156 Mo. 673; Smith v. Vickery, 235 Mo. 413; Butler v. Imhoff, 238 Mo. 584. (5) The description of the property conveyed in the several tax deeds was sufficient. Cases under Points (1) and (4). (6) At the time of the attempted conveyance by Ashby to Rolwing and the attempted mortgage to trustee for Mrs. Charles Goodwin, Ashby had parted with all his interest in this land and hence these transactions conveyed nothing. Cases under Point (3).
This case, coming to the writer on reassignment, is an action to determine title to the north half of Section 9 and the north half of the southwest quarter of Section 10, in Township 23, North, Range 15, East, in New Madrid County. On change of venue it was tried in Mississippi County. The trial was to the court, a jury being waived. The court found and adjudged the title to be in Edwards Land and Timber Company. Plaintiff appealed.
In appellant's abstract of record numerous deeds and court proceedings in the chain of title are referred to as having been introduced in evidence but they are not set out in the bill of exceptions. As best we can gather from the abstract plaintiff's record title rests upon two conveyances, viz., a trustee's deed, dated October 5, 1925, made by the sheriff as trustee in foreclosure of a deed of trust, dated September 20, 1924, and recorded January 28, 1925, given by Frank K. Ashby, conveying "all his right, title and interest" in the lands in question; and a quitclaim deed from H.H. Cornwall, dated July 22, 1931.
As best we can gather from appellant's abstract Ashby did not have title of record when he gave the above-mentioned deed of trust, having previously conveyed to Edward G. Rolwing by warranty deed dated May 29, 1924, recorded May 30, 1924. Rolwing subsequently, by quitclaim deed dated September 29, 1926, conveyed to Corn-Cotton Land Company. The latter company is not shown to have conveyed, but it is a party defendant herein and by its answer disclaimed any interest or claim. There was some oral evidence at the trial relative to a lost deed, as to which more will be stated later. As to Cornwall's quitclaim deed to plaintiff, if the last of the three tax deeds presently to be mentioned is valid Cornwall had no interest to convey when he quitclaimed to plaintiff.
The principal contention on this appeal is as to the validity of three sheriff's deeds under judgments and executions for delinquent taxes due the St. Johns Levee & Drainage District, which for brevity we shall call the levee district. In those tax suits the levee district sued for delinquent taxes due it, naming as defendants the then record owners. There is no evidence that the officers or representatives of the district had knowledge or notice of any claim of title or interest in the lands involved not appearing of record. It is admitted that in each case the named defendants were duly served with process. There is no contention that the taxes sued for were not properly assessed and delinquent. In each case the levee district became the purchaser, for less than the amount of the delinquent taxes sued for. Its right thus to buy in the land is not here challenged. The title thus acquired by the levee district subsequently passed to respondent Edwards Land & Timber Company by conveyances, the sufficiency of which is not controverted.
The three tax suits above referred to were numbered and will be referred to herein as Nos. 5203, 5204 and 5839. In none of these suits is there set out in appellant's abstract the pleadings, judgments or deeds. Appellant states what he conceives to be the substance and effect of the deeds. Respondent, by additional abstract, has supplied us with copies of the sheriff's deeds in question, which, not being disputed, we take as correct. We will state further facts and appellant's contentions as to why these deeds are invalid in connection with the disposition of those contentions, also, in the course of the opinion, such further facts as may be necessary in disposing of...
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