Smith v. Vickery

• Decision Date: 20 June 1911
• Citation: 138 S.W. 502,235 Mo. 413
• Parties: SMITH et al. v. VICKERY et al.
• Court: Missouri Supreme Court

138 S.W. 502

235 Mo. 413

SMITH et al. v. VICKERY et al.

Supreme Court of Missouri, Division No. 2.

June 20, 1911.

1. TAXATION (§ 769)—SALES—DEEDS—AMENDED DEEDS—GROUNDS.

Where the sheriff, who executed a tax deed which recited the rendition of a judgment merely against the real estate described, testified that suits for taxes were always brought against the owner as well as the property, that at the request of the county court he employed competent attorneys to assist him with the suits and in making deeds after sales, and there was evidence that the sheriff's newspaper notice of sale recited a judgment against the owner of the land, the court could presume that the tax suit was properly prosecuted against the owner so as to justify the execution of an amended deed containing the recital of the rendition of a judgment against him as well as against the property.

2. EVIDENCE (§ 83) — PRESUMPTIONS — PERFORMANCE OF OFFICIAL DUTY.

The court, in the absence of positive evidence to the contrary, will presume that public officers perform their duty in the manner directed by law.

3. TAXATION (§ 769)—TAX DEEDS—AMENDMENT.

Where the records and files in a tax suit are destroyed, the sheriff keeping a newspaper notice of sale reciting a judgment against the owner of the land may execute an amended deed to correct an error in the original deed which recites a judgment merely against the property, especially in the absence of circumstances throwing suspicion on the correctness of the notice as published.

4. TAXATION (§ 769)—TAX DEEDS—AMENDMENT.

A sheriff may, after the expiration of his term of office, make, without any order of court authorizing it, an amended tax deed to land sold while in office and correct an error in the original deed.

5. TAXATION (§ 769)—TAX DEEDS—AMENDMENT.

Where one took possession under the authority of a defective tax deed, and neither the owner nor his heirs expended any money on the land after the tax sale, the former was entitled to an amended tax deed to correct defects in the original deed; the owner and the heirs being required to take notice of the tax suit and sale, though no proper deed was made in pursuance of a sale.

6. PLEADING (§ 36)—CONCLUSIVENESS OF ALLEGATIONS ON PARTY PLEADING.

Under the rule that a party need not prove facts admitted in the pleadings of the adverse party, defendant claiming under a tax deed need not prove that the purchaser at the tax sale paid a consideration, where plaintiff alleges that the sheriff sold the land for a specified sum.

7. EVIDENCE (§ 588)—CREDIBILITY OF WITNESSES—PERFORMANCE OF OFFICIAL DUTY—PRESUMPTIONS.

The testimony of a sheriff, who sold land for taxes, that he received a consideration therefor, is entitled to more weight than the testimony of the purchaser that he paid nothing for the land, because of the presumption that the sheriff did his duty and did not give away the land.

8. TAXATION (§ 810)—TAX TITLES—ACTION—EVIDENCE.

Where plaintiff, suing to set aside a tax sale, alleged that the sheriff sold the land and received $60 when only $13.65 taxes were due, and the purchaser at the tax sale testified that he received a valuable consideration when he sold it to a third person under whom plaintiff claimed title, and there was no complaint that the sheriff failed to account for the amount bid by the purchaser, the court could assume that the purchaser's evidence that he paid nothing for the land was mistaken, or that the sheriff himself paid the purchaser's bid and accounted for the same, rendering the sale valid.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by J. G. Smith and others against James Vickery and others. From a judgment for plaintiffs, defendants appeal. Reversed, and judgment directed for defendants.

Action to recover possession of 80 acres of land in Pemiscot county, and also to set aside and cancel a sheriff's deed for delinquent taxes by which defendants hold said land.

It is admitted by the parties that one Albert Smith, who died in 1896, is the common source of title; and that part of his heirs are the plaintiffs herein. Defendants hold a deed from one of the heirs of said Albert Smith, purporting to convey to them an undivided one-tenth interest in the land in controversy; and said defendants claim the whole title to said property through a sheriff's sale for delinquent taxes.

On the 5th day of September, 1882, defendants' grantor purchased the land in dispute at a sheriff's sale for taxes, and received from Peter H. Scott, the then sheriff of Pemiscot county, a deed reciting that the purchaser had paid to said sheriff $62.50 for said land. Said deed is regular in form and apparently sufficient to convey the land, except that it does not recite the name of the person against whom the tax judgment was rendered (the person whose title the sheriff attempted to convey), but, in lieu thereof, simply recites that the judgment of the circuit court was "against the real estate hereinafter described." Under this sheriff's deed, defendants entered into the actual possession of the land; whereupon plaintiffs on May 11, 1904, instituted against them this suit, which, as originally filed, was an ordinary action of ejectment. While this action was pending, defendants applied by petition to the circuit court of Pemiscot county for a writ of mandamus to compel Peter H. Scott, whose term of office as sheriff had expired, to make and deliver to the defendants a correct and proper deed. In which petition for mandamus defendants alleged, among other things, that the original sheriff's deed made by said Peter H. Scott was defective and erroneous, in that it recited that the judgment of the circuit court, upon which said deed is based, was rendered against the land in controversy, whereas in truth and fact said judgment was rendered against one Albert Smith, as the owner of said land; that execution issued on said judgment; and that said execution, as well as the notice of sale, recited that said judgment was against said Albert Smith, as the owner of said property. Before said mandamus proceeding was heard by the trial court, said Peter H. Scott, ex-sheriff as aforesaid, voluntarily made, acknowledged in open court, and delivered to defendants an amended sheriff's deed purporting to convey to them the interest of said Albert Smith in the property in dispute. Upon ascertaining that this amended sheriff's deed had been made, plaintiffs herein added another count to their petition in this action, alleging that the judgment upon which said amended sheriff's deed is based was in fact rendered only against the land in controversy, and not against said Albert Smith; that said Sheriff Scott sold all of said property (80 acres) in a lump for $60, when either 40 thereof would, if sold separately, have brought the whole amount of the taxes due thereon, to wit, the sum of $13.65; that said amended deed was made nearly 23 years after the sale upon which it is based, without notice to the plaintiffs in this action, and is not based upon any order of court requiring the...