Shelton v. Horrell

• Decision Date: 09 May 1911
• Citation: 232 Mo. 358,137 S.W. 264
• Parties: SHELTON v. HORRELL et al.
• Court: Missouri Supreme Court

137 S.W. 264

232 Mo. 358

SHELTON v. HORRELL et al.

Supreme Court of Missouri.

May 9, 1911.

In Banc. Dissenting opinion.

For majority opinion, see 134 S. W. 988.

VALLIANT, C. J.

The points on which this case turned in the majority opinion of the court are of so much importance that I deem it my duty to signify the reasons for my dissent.

1. The petition is criticised and is condemned as failing to state facts sufficient to constitute a cause of action. It does not appear to have occurred to the defendants that there was any defect in the petition until they reached this court. There was no demurrer filed or other challenge of the sufficiency of the petition in the circuit court. Of course, if the petition is fatally defective, if it states no cause of action, its infirmity may be shown at any stage of the litigation, but if it is only clumsy, or not clear in its statements, yet, on a liberal construction, the court can see with reasonable certainty a cause of action stated, it is the duty of the court so to do. That is what section 1831, Rev. St. 1909, requires. When an objection to the sufficiency of a pleading is made for the first time in an appellate court, it ought not to be sustained unless it must be sustained. There is also another rule of pleading that should not be overlooked in this case; that is, that, if the answer gives aid to the petition, the aid will be taken into account.

(a) It is said that this petition does not state that the plaintiff held title to the land at the date of filing the petition. It states that he held title on the day of the sheriff's sale under which the defendants claim. It is a rule of evidence that a condition once shown to exist will be presumed to continue until the contrary is shown. Besides, the plaintiff could not say with truth that he held the title to this land on the day he filed this suit, because the title was then in the defendants, and the purpose of the suit was to vacate that title. The petition says it was the plaintiff's land September 11, 1897, that it was then sold for taxes and struck off to a person from whom the defendants purchased and under whom they claim, and that for certain reasons that sale was illegal, and the prayer is that the deed which is the source of defendants' title be cancelled. That would be a sufficient showing of the plaintiff's title even under the common-law contra proferentem rule of construction.

(b) It is also said that the petition fails to state that the defendants had notice of the illegal acts of the sheriff in making the sale. It does not clearly appear from the petition whether the defendants were the purchasers at the sheriff's sale or purchased from the purchaser at the sale, except in that part of the petition where the plaintiff offers to pay to defendants "the amount paid by them or their grantor" at the sheriff's sale, together with taxes, etc. The words "or their grantor" might imply that the defendants were subsequent purchasers. But, if there was a defect in the petition in this respect, the answer came to its aid and cured the defect. It set out just how the defendants acquired title, namely, by purchase from Stacey, the original purchaser. And they aver that "the sale was made by the sheriff in manner, mode, and form as prescribed by law," and that they bought relying on the recorded deed to Stacey which did not show that the land was not sold in small subdivisions, that they paid him full value for the land "without any knowledge of any irregularity of the sheriff in making the sale of said land." Thus the defendants by their answer tendered the issue of innocent purchasers for value, and the plaintiff joined the issue in his reply of general denial. Therefore the plaintiff had the right at the trial of that issue to prove, as he did prove, that the defendants were not innocent purchasers for value, because they had bought under a quitclaim deed, stood in the shoes of Stacey, and were charged with knowledge of what he knew, and, he being present at the sale, knew just what was done, knew that the 160 acres was sold in one body without having first been offered in the smallest legal subdivisions.

(c) It is also said that the petition is defective because it does not state that the plaintiff was injured by the sale of the land in a body. It states that the 160 acres was worth $1,200 at the date of the sale; that the amount of the judgment for taxes was $9.87; that the land was susceptible of being divided into separate subdivisions of 40 acres each, either of which would have brought more than the amount of the taxes with interest and costs; that the whole 160 acres were sold in a body for $115, no part of which was ever paid to plaintiff. Was there any use in his adding that he was injured thereby?

(d] It is also said that the petition ought to have said that the sheriff in selling the land in bulk abused the discretion that the law confided to him. The argument treats the statute in question (section 3185, Rev. St. 1899, now section 2206, Rev. St. 1909) as if it imposed no obligation on the sheriff at all, saying to him, in effect, "You may or may not, as you please, divide the land in small lots, and sell no more than is necessary to bring the amount called for in the execution, or you may sell the whole tract in bulk if you so prefer;" and that seems to have been the sheriff's opinion in this case, as we shall presently see. But I do not so understand the statute nor the decisions referred to in the opinion. The statute is: "When an execution shall be levied upon real estate, the officer levying the same shall divide such property, if susceptible of division, and sell so much thereof as will be sufficient to satisfy such execution, unless the defendant in the execution shall desire the whole of any tract or lot of land to be sold together, in which case it shall be sold accordingly."

In Shelton v. Franklin, 224 Mo. 342, loc. cit. 361, 123 S. W. 1084, 135 Am. St. Rep. 537, and following cases, are referred to, holding that that statute is directory. I do not understand when a court says a statute is directory that it means to say that the officer to whom it is addressed is at liberty to disregard it, nor do the cases cited in that opinion so hold. If that is what the court means when it says a statute is directory, it might as well repeal the statute, or adjudge it to be of no force or effect. In Shelton v. Franklin there was no occasion to say what would be the effect if the sheriff should abuse the discretion allowed him in the performance of the duty imposed by that statute, because there was no evidence in that case that the sheriff did not obey the direction given in that statute. The contention there was that the sale was void because the sheriff's deed did not recite that the land was divided and so offered for sale as the statute required, but the court held that the absence of such recital in the deed did not render it void. The court said (224 Mo., loc. cit. 364, 123 S. W. 1094, 135 Am. St. Rep. 537): "There is no oral proof as to the sale being in solido, and there is a presumption that the officer did his duty in conducting the sale." Therefore Shelton v. Franklin is no authority for saying that it devolves on the plaintiff in this case not only to show that the sheriff disobeyed the law, but also that he abused the discretion given him by the statute. There are expressions in that opinion to that effect, but they were mere obiter dicta. Assuming that there is a discretion in the sheriff to be exercised when the circumstances justify a departure from the direction prescribed by the statute, it does not devolve on the injured party to prove that the officer, not only violated the law, but abused his discretion also. It is sufficient to show that he violated the law, and it then devolves on the party who would justify the unlawful act to show that the circumstances justified it. But the cases cited in Shelton v. Franklin do not in my opinion go to the extent of holding that the sheriff may at his pleasure disobey the statute. The first case cited—Rector v. Hartt, 8 Mo., loc. cit. 461, 41 Am. Dec. 650, says: "We regard this statute as directory. A violation of its injunctions will not make a sale void, although it may be good cause for setting it aside on proper application. * * * All that is intended to be said is that a sale in mass by a sheriff of distinct parcels of real estate is not ipso facto void." None of the cases following have gone farther than that. They all say that the failure of the sheriff to obey the law in this respect does not render the deed void so that it may be attacked in a collateral way, but that it is voidable in a direct proceeding to set it aside. Morrison v. Turnbaugh, 192 Mo., loc. cit. 444, 91 S. W. 152. None of the decisions cited say that the sheriff has a discretion to violate the law, or that it devolves on the injured party, when he comes into a court of equity to complain of the violation of the law, to show, also, that the sheriff abused his discretion. But assuming that the sheriff had a discretion, and that it devolved on the plaintiff to show...