Shewalter v. Pirner

• Decision Date: 31 January 1874
• Parties: JOSEPH D. SHEWALTER, Respondent, v. GUSTAVE PIRNER, et al., Appellants.
• Court: Missouri Supreme Court

55 Mo. 218

JOSEPH D. SHEWALTER, Respondent,

v.GUSTAVE PIRNER, et al., Appellants.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Common Pleas Court of Lafayette County.

Ryland & Son and X. Ryland, for Appellants.

I. The deed of the Farmers' Bank of Mo. to Jeremiah Bear, trustee for Susan C. Baer, being signed by the president of the bank, was properly executed and ought to have been received in evidence. It is the seal of the corporation attached to the deed that makes it the act of the bank, it purporting on its face to be the deed of the bank. (Johnson vs. Musser, 42 Mo., 74; Wagn. Stat., 273, § 5; Sug. Vend., [Old 2 Am. Ed.] 501-2; Perry vs. Ruggles, 1 Mo., 349; Ang. and Am. Corp., [6 Ed.], §§ 225, 226; Pitman vs. Kintner, 5 Blackf., 250; Haven vs. Adams, 4 Allen, 80.)

II. It has long been the settled rule of law in this State, that parol evidence is admissible to show that the property conveyed by sheriff's deed is well known by the description therein contained, however vague the description may appear. The object of description is to prevent sacrifice of property, and the property in controversy is sufficiently well known by the description given. (Hart vs. Rector, 7 Mo. 531;Webster vs. Blount, 39 Mo., 500, and cases there cited from our own court.)

III. The court had no right to inquire in this proceeding into the power of the Farmers Bank to purchase this property. Conceding that the bank had no authority to hold the real estate; there being no express prohibition against buying, the corporation having bought the real estate in dispute, its title acquired was indefeasible for the purposes of alienation, and defeasible only at the instance of the State of Missouri, while undisposed of by the corporation, by direct proceedings against the corporation. The court below therefore erred in rejecting the sheriff's deed, on the ground that the bank had no right to purchase, and in so declaring the law at the instance of respondent. (People vs. Mauran, 5 Denio, 389; Chatauque Co. Bk. vs. Risley, 19 N. Y., 369; Banks vs. Poitaux, 3 Rand. [N. Y.], 139; Sil. Lake Bk. vs. North, 4 John. Ch., 370; McIndoe vs. City of St. Louis, 10 Mo., 573; Union B. R. R. Co. vs. East Tenn. R. R. Co., 14 Ga., 327; Farmers' & Millers' Bank vs. Detroit & Mil. R. R. Co., 17 Wis., 372; Regents of University vs. Detroit Y. M. Society, 12 Mich., 138; Land vs. Coffman, 50 Mo., 243; Ang. & Am. Corp., §§ 152-3; 2 Kent. Com., 282; Merchants Bk. vs. Harrison, 39 Mo., 433; Blunt vs. Walker, 11 Wis., 334; Sherwood vs. Rock River Bank, 10 Wis., 230.)

J. D. Shewalter, for Respondent.

I. The sheriff's deed to the bank is void for uncertainty in the description. Known and fixed monuments called for in a grant will control the courses and distances called for in the same instrument. (Campbell vs. Clark, 6 Mo., 221; Campbell vs. Clarke, 8 Mo., 553; McGill vs. Somers, 15 Mo., 80; Wittelsey vs. Kellogg, 28 Mo., 404; Kronenberger vs. Hoffner, 44 Mo., 192; Hall vs. Davis, 36 N. H., 569; Bruckner's Lessee vs. Lawrence, 1 Doug., 19; Wendell vs. Jackson, 8 Wend., 183; 4 Kent's Com., 466 [11 Ed.] and n. 1; 1 Cow., 613; Bell vs. Hickman, 6 Humph., 398; Evans vs. Green, 21 Mo., 170; Jennings vs. Brizeadine. 44 Mo., 332.) “Fronting Pine street,” being a call for a monument, must govern in locating the lot over the call “north of Turners Hall,” and, as no lot can be located opening with both calls (they are irreconcilable), the latter must be excluded. As the lot sued for does not front Pine street, but only extends back to an alley, it is not embraced in the sheriff's deed. In the construction of deeds where there are several calls, courts will, if possible, reconcile all; but where this is impossible, that which is most certain will govern. (Clemens vs. Rannells, 34 Mo., 581; 6 Barb., 258; same case 474; Dana vs. Midellesex, 10 Met., 250; Howe vs. Bass, 2 Mass., 379; Miller vs. Cherry, 3 Jones Eq., 25.)

II. The deed, if good as a private grant, would not be good as a sheriff's deed. Greater certainty is required in sheriff's deed. “It should be premised that the same presumption of intendment cannot be inferred from a sheriff's deed, as from a direct conveyence by grantor.” (Nelson vs. Broadhack, 44 Mo., 603; Evans vs. Ashley, 8 Mo., 184; Simmonds vs. Catlin, 2 Cains, 65; 13 Johns., 532.) Sales by process of law must be governed by very different rules from ordinary conveyances. It must be so described, “that purchasers may know what specific land is put up at auction, and where it lies.” (Hart vs. Rector, 7 Mo., 534.) In the present case no witness pretends that it describes any specific lot, and even Wentworth says, it embraces the whole strip of probably a hundred or more lots. In private conveyances equities attach, and these equities “will be enforced by just rules of construction.” In sheriff's deeds, however, there is no agreement, no equities, nothing to which the owner has assented, and nothing to be inferred against him.

III. It is admitted that however vague the description in a sheriff's deed, parol evidence is admissible to show that in the neighborhood it is well known by the description given, but if it is shown that a large tract or parcel of land is well known by a certain designation, ( e. g. Blackacre,) this of itself will not pass a small indefinite portion of such tract. (Ashley vs. Evans, supra; Jackson vs. Delancy, 18 John., 107; Jackson vs. Rosvelt, 13 John., 97; Thockmorton vs. Moore, 10 Ohio, 44; 1 Swan [[Tenn.], 375; 4 B. Mon. 211; 1 H. & Gil., 172.)

IV. But in this case parol evidence was not admissible to identify the premises,--the ambiguity was patent; it appeared on the face of the deed. The ambiguity was patent, the deed void, and could not be aided by parol. (Hardy vs. Mathews, 38 Mo., 121; Campbell vs. Gabriel, 44 Mo., 448; Jennings vs. Brizeadine, Ib., 333; Hall vs. Davis, 36 N. H., 569; 1 Green, § 297; Broom's Legal Max., 23; Sug. Vend., 18 [Am. Ed., 1836.] The deed to the bank is to a lot “fronting Pine.” Parol evidence is not admissible to show that it was intended to convey the lot sued for, which fronts Cedar. The ambiguity is patent, or more properly is a description of a totally different lot.

V. But the parol evidence admitted did not identify the premises, no witness could from the description identify the “specific property” sought to be conveyed, so it was void. They all attempt to locate it by the call for “North of Turners Hall,” excluding the call for “fronting Pine Street.”

VI. The bank under its charter had no power to become the purchaser of the property. (Dartmouth College vs. Woodward, 4 Wheat., 518; Beaty vs. Knowby, 4 Pet., 152; St. Louis vs. Clemens, 43 Mo., 404, and cases cited by court; Ruggles vs. Collier, 43 Mo., 375; Pacific R. R. vs. Seeley, 45 Mo., 212, and cases cited; Merchants Bank vs. Harrison, 39 Mo., 433.)

VII. It cannot now be said, that the powers of the bank to take and hold this real estate cannot be inquired into, for three reasons: 1st. The appellants, who claim under the bank, went voluntarily into the question of the powers of the bank under its charter to take this real estate, both by attempting to show that the judgment debtors were indebted to the bank at the time of the purchase, and also by an instruction as to its powers, the refusal of which is here assigned as error. Nowhere is it assigned as error that the court could not in this proceeding, go into an examination of the powers of the bank, but on the contrary the appellants voluntarily went into the question. 2nd. The restriction imposed on the bank is by a general law, and not by its charter. 3rd. This is a sale under process of law, and not a private grant. As to the powers of corporations in collateral proceedings, see Calloway Mining Co. vs. Clarke, 32 Mo., 305; Bank of Ed'ville vs. Simpson, 1 Mo., 129; 2 Mo., 171; Haynes vs. Carrington, 13 S. & M., 411; Whitman Mining Co. vs. Baker, 3 Nev., 391; Life & Fire Ins. Co. vs. Mechanics' Ins. Co., 7 Wend., 34; Bank of Mich. vs Niles, 1 Doug., 401 [[[[though this was a case for specific performance]; Leazure vs. Hilligas, 7 Serg. & R., 319; Chatauqua Bank vs. Risley, 4 Denio, 488; Rock River Bank vs. Sherwood, 10 Wis., 230; Camden & Amboy, R. R. vs. Com. of Mansfield, 1 Zeb., 510; Downing vs. Mount Wash., 4 N. H., 230; Argenti vs. San Francisco, 16 Cal., 253; Dana vs. Bank of St. Paul, 4 Minn., 385; White Bank vs. Toledo Ins. Co., 12 Ohio St. 601. Their powers are to be strictly construed. (Rice vs. R. R. Co., 1 Black, 358.)

VORIES, Judge, delivered the opinion of the court.

This was an action of ejectment, brought by the respondent against Gustave Pirner to recover the possession of a lot of lands described in the petition as follows:

Being in the city of Lexington, Lafayette county, State of Missouri: “Beginning at a point in the west side of Cedar street in the said city, forty-six feet north of the north-east corner of block number thirty-six, as known and designated on the plat of the first addition to the town of Lexington, now on file in the recorder's office for said county of Lafayette; and being the north-east corner of a piece of land sold by William S. Field to Joseph Traxell, and running thence in a westerly direction, with the line of said land so sold to said Traxell, one hundred and forty-six feet to a point in a private alley left by said Field, and being the north-west corner of said lot so sold to said Traxell, thence in a northerly direction on a line paralled with said Cedar street thirty feet nine inches to the section line between sections thirty-three and twenty-eight in township fifty-one of range twenty-seven, thence east with said section line one hundred and forty feet to a point in the west line of said Cedar street, thence along the said line of Cedar street twenty-nine feet and seven inches to the place of beginning.” The petition is in the usual form.

After the commencement of the suit the defendants, Jeremiah Bear and Susan Bear...