Stewart v. Perkins

• Decision Date: 20 June 1892
• Citation: 110 Mo. 660,19 S.W. 989
• Parties: STEWART v. PERKINS et al.
• Court: Missouri Supreme Court

19 S.W. 989

110 Mo. 660

STEWART v. PERKINS et al.

Supreme Court of Missouri, Division No. 1.

June 20, 1892.

ACKNOWLEDGMENT OF PLAT — JUDGMENT LIEN — SHERIFF'S DEED.

1. An acknowledgment of a plat taken in 1868 by a deputy recorder of deeds is valid, such an officer being recognized by Gen. St. 1865, p. 162, § 29, providing for his payment.

2. A purchaser of lots sold under a recorded plat loses all interest therein by a foreclosure in due course of a judgment lien which existed at the time of the making of the plat.

3. Where property is platted, and thereafter described in a sheriff's deed without regard to the plat, but by its former name, and it is shown that it is so known in the neighborhood and assessed for taxes, the description in the deed is sufficient.

Appeal from circuit court, Buchanan county; HENRY M. RAMEY, Judge.

Action of ejectment by Hugh Stewart against John Perkins and others. Judgment for defendants, and plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by SHERWOOD, C. J.:

In 1889, plaintiff brought ejectment for lots 9, 10, 11, 12, 13, Hay's Second Railroad addition to the city of St. Joseph. The defendant Zimmerman is the real defendant in the action, and Perkins is his tenant, and defendant has been in possession since 1883 or 1884. William Noble was the patentee of the N. E. ¼ of section 20, township 57, range 35, Buchanan county, Mo., which patent was recorded January 2, 1873, in Buchanan county. William Noble afterwards made his will. By the provisions of the will Levi Johnson was made his sole heir, and Russell A. Rinkle executor and guardian of the said Levi Johnson. At the partition sale of this property, E. O. Hays purchased lot 5, in block 2, Noble tract, and in support of this offered in evidence a sheriff's deed executed by the sheriff of Buchanan county, dated the 15th day of April, 1858, which conveyed, among other property, lot 5, block 2, Noble tract, to E. O. Hays. Plaintiff, over the objection of defendant, introduced in evidence a plat of E. O. Hays of block 2 of the Noble tract. The plat or division of ground was called "Hays' Second Railroad Addition." The plat was acknowledged before George A. Pearcy, recorder, by Thomas S. Pearcy, deputy recorder, and was recorded March 21, 1868. Plaintiff introduced in evidence a deed from E. O. Hays to Hugh Stewart to the lots described in the deed as 9, 10, 11, 12, and 13, in block 1, in ___ Railroad Second addition to the city of St. Joseph. There was no evidence introduced explaining this description. The consideration in the deed was $350. Hugh Stewart, the plaintiff, testified that he paid $100. There is no evidence that he ever paid any taxes or was ever in possession. The deed from Hays to Stewart was dated the 14th day of May, 1868. Plaintiff proved that defendant Zimmerman had been in the actual possession and had fenced this ground in the year 1883 or 1884, and that prior to that time the same had been vacant and unoccupied. Defendant Zimmerman claimed to be the owner of lot 5, block 2, Noble tract, by virtue of possession, and by and through the conveyances offered in evidence. On the 30th day of June, 1864, judgment was rendered in favor of James A. Matney against E. O. Hays for the sum of $1,090.80, and costs; execution was issued upon this judgment, while the judgment was in full force; and lot 5, block 2, Noble tract, was sold, and purchased by James A. Matney. The sheriff's deed conveying this property to Matney was executed the 10th day of April, 1869, and was recorded April 30, 1869. Matney afterwards, on the 15th day of November, 1871, mortgaged lot 5, block 2, Noble tract, to Buchanan county, for school money. This mortgage was filed for record November 16, 1871. Lot 5, block 2, Noble tract, was by order of the county court ordered to be sold in satisfaction of the school mortgage given to the county as aforesaid. At the sheriff's sale in satisfaction of this mortgage, E. C. Zimmerman became the purchaser of said lot. The sheriff's deed executed to Zimmerman in pursuance of such purchase was dated on the 7th day of October, 1879, and was recorded November 11, 1879. Defendants also introduced in evidence a quitclaim deed from James A. Matney, conveying to defendant Eugene C. Zimmerman lot 5, block 2, Noble tract. This deed was dated on the 13th day of September, 1887, and recorded the same day. Defendants offered in evidence sheriff's deed to lot 5, in block 2, Noble tract, to E. C. Zimmerman, in satisfaction of a judgment against James A. Matney for the state and county taxes levied upon said lot. This deed was dated the 19th day of September, 1881; recorded the 27th of September, 1881. Defendants also introduced in evidence tax receipts for the city, state, and county taxes from the year 1869 up to the time of institution of suit, with the exception of one year, when said lot was sold for city taxes, and was purchased by Zimmerman. Defendants called as witnesses the county assessor and city collector and treasurer, who testified that lot 5, in block 2, Noble tract, had always been assessed by that description, and was generally known by that description. The county assessor stated that for the year 1869 the lots described in plaintiff's petition had been assessed as in Hays' Second Railroad addition. J. C. Hedenberg testified that he was an abstracter, and in looking over his records had made discoveries in relation to the platting of Hays' Second Railroad addition, information of which he imparted to plaintiff's counsel, and that in consideration of such information he received a deed of trust on a part of Hays' Second Railroad addition. Hugh Stewart, the appellant, testified: "I went to Mr. Zimmerman as a lawyer. I think it was in '73 or '74. I asked him for information. I told him I had paid Mr. Hays $100 on this, and asked him what I should do, and he looked up the case for me, and told me it would be very foolish to pay anything more on this; that Johnnie Hays had a judgment in the court of common pleas against this, and that I could not do anything, so that I would be very foolish to pay anything more on this property. I cannot remember everything he said, just now, being just getting out of bed, sick, and I feel weak and nervous. I haven't my recollection about me." Zimmerman denied any such conversation. At the close of the evidence the court gave an instruction in the nature of a demurrer to the evidence, and the plaintiff took a nonsuit. Other facts, if material to be recited, will be touched upon as becomes necessary in the course of the following opinion.

The following is the plat referred to:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

"HAYS' SECOND R. R. ADDITION TO THE CITY OF ST. JOSEPH.

"State of Missouri, County of Buchanan — ss.:

"The undersigned, E. O. Hays, of Buchanan county, Mo., do hereby declare that I am the sole proprietor and owner of block two (2) of the Noble tract, and that I have subdivided the same into lots of the length and width as shown on the within plat; that we have numbered the same as shown on the within plat; that the streets and alleys are correctly shown and set forth on the within plat, and that I do hereby dedicate the streets and alleys to the public forever. Witness my hand and seal this 2d March, A. D. 1868.

                                 "E. O. HAYS. [Seal.]"
                

"State of Missouri, County of Buchanan — ss.:

"Be it remembered that on this 21st day of March, A. D. 1868, personally appeared before me, recorder of deeds within and for the county aforesaid, E. O. Hays, who is personally known to me to be the person whose name is subscribed to the above and foregoing dedication and instrument of writing as party thereto, and acknowledged the same to be his act and deed for the uses and purposes therein mentioned. Witness my hand and seal of office this March 2d, 1868.

                      [Seal.]                                         "GEO. A. PEARCY, Recorder
                                                                           "By THOS. S. PEARCY, Deputy
                "Filed for record March 21st, 1868
                                       "GEO. A. PEARCY, Recorder
                

"State of Missouri, County of Buchanan — ss.:

"I, Thomas N. Finch, recorder of deeds within and for the county and state aforesaid, do hereby certify that the above and foregoing instrument of writing is a true and correct copy of the plat of Hays' 2d R. R. addition to the city of...