Swift v. Buford

• Citation: 280 Mo. 432,217 S.W. 980
• Decision Date: 06 January 1920
• Docket Number: No. 20571.,20571.
• Parties: SWIFT v. BUFORD.
• Court: United States State Supreme Court of Missouri

217 S.W. 980

280 Mo. 432

SWIFT v. BUFORD.

No. 20571.

Supreme Court of Missouri, Division No. 2.

January 6, 1920.

Appeal from Circuit Court, Shannon County; E. P. Dorris, Judge.

Action by Emma Swift against James E. Buford. From judgment for plaintiff, defendant appeals. Judgment reversed, and cause remanded.

John H. Chitwood and C. M. Buford, both of Ellington, and Franklin Miller, of St. Louis, for appellant.

J. W. Chilton, of Springfield, and John W. McClellan, of Eminence, for respondent.

WHITE, C.

This action was begun October 7, 1916, under section 2535, to determine title to a tract of land in Shannon county, Mo., described as all of section 20, township 29, range 1 west. A count in ejectment also is in the petition. There was a judgment for plaintiff, and the defendant appealed.

It was stipulated that one E. W. Echols was the common source of title, and the owner on and before March 14, 1888, and that the defendant had been in possession of the property for one year prior to the bringing of this suit. Echols died in 1910, and his title descended to Mary Echols Bell, his only heir, who conveyed to Frank P. Swift, April 15, 1916. Swift died after the institution of this, suit, having devised the land to his widow, the present plaintiff.

The defendant claims under a sheriff's deed executed March 14, 1888, under a judgment against E. W. Echols enforcing a tax lien and a sale for taxes; also a second sheriff's deed executed on the 10th day of May, 1916, in correction of the first sheriff's deed, and mesne conveyances.

The first sheriff's deed recites that a judgment was rendered September 17, 1887, in the circuit court of Shannon county for delinquent taxes in the sum of $62.50, which was found by the court to be due upon the following described real estate, to wit:

                            "Parts of Sections
                              "Lot or Block
                "Tract   Addition
                 No.     or Town.   Sect.   Twp.   Range.   Block
                 1        W 1-2      20      29      1
                 2        E 1-2      20      29      1
                 3        NE 1-4     22      31      4
                

"And that the" taxes and interest found due upon said real estate, and the years for which the same were assessed, are upon each of the above-described tracts, as follows, viz.:

                Tract  Years for which
                  No.    Taxes were      Tax.   Interest. Total
                         Found Due
                  1     1884 & 1885                       25.09
                  2     1884 & 1885                       25.09
                  3     1884 & 1885                       12.35"
                

The deed further recites that a special execution and order of sale was issued from the clerk's office on the 17th day of January, 1888, by virtue of which the sheriff, William M. Freeman, levied upon "the above-described real estate." It recites the publication of the notice of sale, and the sale March 13, 1888, in the following words:

"I did * * * expose to sale at public auction, for ready money, the above-described real estate, and James A. Jadwin being the highest bidder for the following described real estate, viz.:

"1s W2 of section twenty and the east half of section twenty, in township twenty-nine, range one west, and the northeast quarter of section twenty-two, in township thirty-one, range four west.

"Section No. ____ in township No. ____ north of range ____ west ____ acres, for the sum of thirty-seven dollars, the said last above described tract was stricken off and sold to the said James A. Jadwin for the sum bid therefor by him as above set forth.

"Now, therefore, in consideration of the premises, and the sum of thirty-seven dollars, to me, the said sheriff, in hand paid by the said James A. Jadwin, the receipt whereof I do hereby acknowledge, and by virtue of the authority in me vested by law, I, W. M. Freeman, sheriff, as aforesaid, do hereby assign, transfer, and convey unto the said James A. Jadwin all the above-described real estate so stricken off and sold to him that I might sell as sheriff as aforesaid, by virtue of the aforesaid judgment, execution and notice."

The deed was duly signed by W. M. Freeman, sheriff, and his acknowledgment certified by the clerk of the circuit court in the ordinary form. It was filed for record March 19, 1888.

The record in the office of the clerk of the circuit court of that acknowledgment described the land as follows:

"1st. W2 of section twenty and the east half of section twenty, township 29, range 1 west, northeast quarter of section 22, in township 31 north, of range 4 west."

The second sheriff's deed, dated the 10th day of May, 1916, executed by C. 0. Chilton, then sheriff of Shannon county, recites the judgment of September 17, 1887, for taxes against the following described real estate, to wit:

"Tract One—The west half of section twenty, in township twenty-nine, range one west. "Tract Two—The east half of section twenty, in township twenty-nine, range one west. "Tract Three—The northeast quarter of section twenty-two, in township thirty-one, range four west."

The deed then recites the amount of taxes due for each year for which the tract was delinquent, the amount of interest as in the first sheriff's deed, the judgment, special execution, and the order of sale on the 17th day of January, 1888, delivery to Wm. M. Freeman, then sheriff, the levy and notice of sale, as in the original sheriff's deed, and that said Freeman, sheriff, pursuant to such notice, on the 13th day of March, 1888, did—

"expose to sale at public auction for ready money all the above-described real estate, and James A. Jadwin being the highest bidder for all the above-described real estate, to wit, all of section twenty, in township twenty-nine, range one west, and the northeast quarter of section twenty-two, in township thirty-one, range four west, for the sum of thirty-seven dollars, all of the aforesaid real estate was by said sheriff stricken off and sold to the said James A. Jadwin for the said sum of thirty-seven dollars."

"And whereas, on the 14th day of March, 1888, said Wm. M. Freeman, as sheriff of said county as aforesaid, executed and delivered a deed to said James A. Jadwin for all of the aforesaid land, which said deed, upon the petition of James H. Buford, was, by the circuit court of Shannon county, Missouri, at its May term, 1916, found to be defective, and that said Wm. M. Freeman, the sheriff as aforesaid, who executed the aforesaid deed, is now a nonresident of the state of Missouri.

"And whereas, upon the aforesaid petition and the hearing thereon by the said circuit court at its May term, 1916, and on the 9th day of May, 1916, it was further found by said court that said James A. Jadwin has since the, aforesaid sale, assigned, transferred and conveyed all his right, title, and interest in and to said real estate so acquired by him at such sheriff's sale, and that by mesne conveyances all of said section twenty, in township twenty-nine, range one west, is vested in the said James H. Buford.

"And whereas, after hearing the evidence offered by said James H. Buford in support of his aforesaid petition, the said court ordered and directed that I, as the present sheriff of said county, execute and deliver to said James H. Buford a deed for all of said section twenty, in township twenty-nine, range one west.

"Now, therefore, in consideration of the premises, the order of said court, and the sum of thirty-seven dollars so paid by the said James A. Jadwin to the said Wm. M. Freeman as sheriff as aforesaid, and by virtue of the authority in me vested by law, I, C. 0. Chilton, sheriff of Shannon county, Missouri, do hereby assign, transfer, and convey unto the said James H. Buford all of said section twenty (20), in township twenty-nine (29), range one (1) west, situate in Shannon county, Missouri, that I Might sell and convey by virtue of the aforesaid judgment, notice, and order of court."

The deed was then, on the same day, duly signed and acknowledged by Chilton as sheriff.

W. M. Freeman was sworn and examined on behalf of plaintiff, and testified that he was sheriff of Shannon county from 1887 to 1891; that he was away from Shannon county in Oklahoma from August, 1915, to November, 1916. He had no recollection of his sale of the land as sheriff, nor of the first sheriff's deed produced in evidence. He testified, further, that he conducted sheriff's sales on advice of counsel, and that the sheriff's deeds which he executed while in office were presumed to correspond with printed forms of deeds in the recorder's office.

The plaintiff claimed under the will of her husband, Frank P. Swift, and offered depositions to show that Frank P. Swift acquired the land April 15, 1916, for a valuable consideration of $1,500.

[] I. The respondent asserts that the first sheriff's deed conveyed no title to the land in dispute to Jadwin. It will be noticed by the recitals in the deed that the judgment for taxes covered three tracts of land: The west half of section 20, township 29, range 1 west; the east half of section 20, township 29, range 1 west; and the northeast quarter of section 22, township 31, range 4 west. The first two are involved in this case. The recitals show that James A. Jadwin was the highest bidder for the three tracts above mentioned for the sum of $37, but continue thus:

"The said last above described tract was stricken off and sold to the said James A. Jadwin for the sum bid therefor by him as above set forth."

The sheriff then conveyed to Jadwin "all the above-described real estate so stricken off and sold to him." It is claimed by respondent that, inasmuch as there are three tracts described, "the said last above described tract" could refer only to the northeast quarter of section 22, township 31,. range 4 west.

In case of De Paige v. Douglas, 234 Mo. 78, 136 S. W. 345, where the recitals in the sheriff's deed were almost exactly like those under consideration, it was held by this court, in an opinion by Judge Lamm, that only the last-mentioned tract passed by the deed. 234 Mo. loc. cit. 83, 136 S. W....