Smith v. Nelson
| Decision Date | 06 June 1892 |
| Citation | 19 S.W. 734,110 Mo. 552 |
| Parties | Smith v. Nelson, Appellant |
| Court | Missouri Supreme Court |
Appeal from Henry Circuit Court. -- Hon. D. A. DeArmond, Judge.
Affirmed.
F. E Savage for appellant.
(1) In admitting parol and extrinsic evidence to explain the patent ambiguity of the sheriff's deed, offered and read in evidence by the plaintiff, the court erred. The deed upon its face discloses a patent ambiguity; it, therefore, must stand or fall upon its own merits. 1 Greenleaf on Evidence [1 Ed.] secs. 297-301; Campbell v. Johnson, 44 Mo. 247; Ware v. Johnson, 66 Mo. 668; Andrews v Todd, 50 N.H. 565. The sheriff's deed offered in evidence and admitted by the court, remaining uncertain as to the description, was void for that reason. The rule laid down by the supreme court of the United States in Boardman v. Reed is: That if the land granted be so inadequately described as to render its identity wholly uncertain it is admitted that the grant is void. 6 Peters, 328; Evans v. Ashley, 8 Mo. 177; Hart v. Rector, 7 Mo. 531. (2) The deed from the sheriff, under which respondents claim, is void for uncertainty. It vested no title in respondent to appellant's property, and the court below erroneously admitted it in evidence. Peck v. Mallames, 10 N.Y 532; Hill v. Monroe, 6 Gray, 551; Nelson v. Brodhack, 44 Mo. 602; King v. Fink, 51 Mo. 209; Bell v. Dawson, 32 Mo. 79. The judgment of the circuit court in the tax case against Mary Nelson is a nullity upon its face, the same being void for uncertainty in the description of the land in question. Brown v. Walker, 11 Mo.App. 229; Olcott v. State, 10 Ill. 481; Pedgrove v. State, 36 Ill. 249; Lowe v. Ekey, 82 Mo. 286. (3) Vagueness in the description of property intended to be taxed is fatal to the validity of a tax bill. City of Jefferson v. Whipple, 71 Mo. 519. And, if the land is improperly or vaguely described in the tax bill, judgment, execution and sheriff's deed, as to be incapable of identification under the rule governing in such cases, the purchaser at sheriff's sale cannot recover in ejectment. Alexander v. Hicks, 34 Mo. 449. (4) The petition in the tax suit, judgment, execution and sheriff's deed, and the finding and judgment of the court in this cause, show conclusively that the east end of the lot or acre of land of appellant was sold for taxes assessed against an acre of land located in the southeast corner of the northeast quarter of the southeast quarter of said section number 2, township 43, range 24, only a portion of which was owned by appellant. This, of itself, renders the sale and the deed made in pursuance thereof absolutely void. Keene v. Barnes, 29 Mo. 377; Ballance v. Forsythe, 13 How. (U.S.) 18.
B. G. Boone and N. K. Chapman for respondent.
The court did not err in permitting respondent to introduce parol evidence to locate and identify the land, and its ruling in so doing is fully supported by the following authorities: Hart v. Rector, 7 Mo. 531; Evans v. Ashly, 8 Mo. 177; Landes v. Perkins, 12 Mo. 238; Bates v. Bank, 15 Mo. 309; Clemens v. Randall, 34 Mo. 479; Webster v. Blount, 39 Mo. 500; McPike v. Allman, 53 Mo. 551; Prior v. Scott, 87 Mo. 303; Charles v. Patch, 87 Mo. 450; Hammond v. Johnston, 93 Mo. 198.
This was an action of ejectment to recover one acre of land, of which the defendant, Mary Nelson, was the owner at the date of the tax judgment hereafter mentioned. The plaintiff's title is a sheriff's deed based upon a sale under a special execution issued upon a judgment for $ 113.45, rendered by the Henry county circuit court in April, 1888, in a suit of the collector against said Mary Nelson to recover delinquent taxes for the years 1877 to and including 1885.
The land owned by the defendant at the date of the tax judgment and sued for in this case is described as follows: "One acre, beginning twenty feet north of the southeast corner of the northeast quarter of the southeast quarter of section 2, township 43, range 24; thence north six and thirty-three-hundredths rods; thence west twenty-five and thirty-two-hundredths rods; thence south six and thirty-three-hundredths rods; thence east twenty-five and thirty-two-hundredths rods to the place of beginning, containing one acre, more or less."
The property is described in the tax proceedings and in the sheriff's deed as "one acre, being the southeast corner of the northeast fourth of the southeast quarter of section 2, township 43, range 24, Henry Co., Mo."
The trial court gave judgment for the plaintiff for two hundred and eight feet off of the east end of the land described in the petition, thus holding that the sheriff's deed described one acre in a square form in the southeast corner of the forty acres, and that the plaintiff was only entitled to recover so much of the land sued for as was included in the boundaries of a square acre in the corner. From that judgment the defendant only appealed.
1. The defendant insists that the sheriff's deed is void for uncertainty in the description of the land which it undertakes to convey.
It was held in Wilkinson v. Roper, 74 Ala. 140, that a description of "ten acres of the land off the northwest corner" of a named subdivision was sufficient and not void for uncertainty. Says the court: "It calls for a quadrangle, of equal sides, extending to the northwest corner." That was a conveyance between parties, and not a sheriff's deed. In Lessee of Walsh v Ringer, 2 Ohio 327, the sheriff levied upon and sold the land as "seventy acres, it being and lying in the southwest corner of the southwest quarter of section 14, township 12, range 5, of...
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