Swisher v. Pemberton
| Decision Date | 28 March 1913 |
| Parties | MICHAEL S. SWISHER, Appellant, v. OTIS A. PEMBERTON |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.
Reversed and remanded.
T. H Harvey for appellant.
(1) The court officer is presumed by the law to perform his engagements and duties. Agan v. Shannon, 103 Mo 661; Lenox v. Harrison, 88 Mo. 491. (2) Could the sheriff, at his said sale, disregard the order of the circuit court, and sell only so much of the land as he was directed to sell by the attorney for plaintiffs? The answer to this question must be in the negative, even though all the parties to the suit had so agreed. The order of sale, based on the partition decree, is the sheriff's authority to make the sale. Hughes v. Hughes, 72 Mo. 136; Agan v Shannon, 103 Mo. 661; Loring v. Groomer, 110 Mo. 632. (3) A particular description in a deed, which is contrary to the general intention and purpose of the deed should be rejected as repugnant. Agan v. Shannon, 103 Mo. 661; Thomson v. Thomson, 115 Mo. 56; Mitchener v. Holmes, 117 Mo. 185; Johnson v. Boulware, 149 Mo. 451; Johnson v. Johnson, 170 Mo. 34; Goltermann v. Schiermeyer, 111 Mo. 404; West v. Bretelle, 115 Mo. 653; Evans v. Greene, 21 Mo. 170; Tiedeman on Real Property, sec. 829; 8 L.R.A.(N.S.) note, pp. 1038, 1039. (4) The trial court held that before the plaintiff could recover, he must first bring a suit to have his deed corrected. This we contend was error. We are aware of a line of cases which on casual examination might lead to this conclusion, but when carefully considered do not so hold. In all of them the description was either false or so defective as only to convey an equitable title, and under such circumstances it was held plaintiff's remedy would be to get a corrected deed in the statutory way. But where the land is properly described in the first place and a clause is afterwards inserted restricting or cutting down the property conveyed, then the words of such restriction will be treated as surplusage. West v. Bretelle, 115 Mo. 653; Johnson v. Boulware, 149 Mo. 451; Evans v. Greene, 21 Mo. 170; Presnell v. Headley, 141 Mo. 187. (5) The evidence showed that the strip of land in controversy was a part of said quarter quarter section. (6) Under the second count of the petition, it was the duty of the court to ascertain and determine the estate, title and interest of the parties to the suit. Richards v. Mining Co., 221 Mo. 149.
Reynolds & James for respondent.
(1) The strip of land sought to be described in the petition does not lie in the southwest quarter of the northwest quarter of section 21, but lies wholly in the northwest quarter of the southwest quarter of said section. This fact is incontrovertibly shown from the testimony and from the survey of Latimer, the surveyor. (2) The Latimer survey was made in accordance with the provisions of the statutes governing surveys, and is a correct survey and establishment of the line between the southwest quarter of the northwest quarter of section 21, and the northwest quarter of the southwest quarter of said section lying south thereof. According to the Latimer survey, the line runs through the center of said section 21, east and west, and divides it in halves. The effect of said line is also to make an equal number of acres in the southwest quarter of the northwest quarter, and in the northwest quarter of the southwest quarter. R.S. 1909, secs 11313 to 11321. (3) The plaintiff in ejectment must recover upon the strength of his own title. Marvin v. Elliott, 99 Mo. 616; Mather v. Walsh, 107 Mo. 121; West v. Bretteells, 115 Mo. 653; Mutherin v. Simpson, 124 Mo. 610. (4) Likewise when the court is asked to determine and declare the title, it must be the title which plaintiff, by his deeds and muniments of title presents. (5) In ejectment the plaintiff must have the legal title. Williams v. Carpenter, 35 Mo. 52; Hunt v. Selleck, 118 Mo. 588; Pierce v. Lee, 197 Mo. 480; Shaffer v. Detie, 191 Mo. 377; Martin v. Kitchen, 195 Mo. 377. (6) An equitable title alone will not support ejectment. Shaffer v. Detie, 191 Mo. 377; Martin v. Kitchen, 195 Mo. 477. (7) The proceedings in partition in this case, outside the deed, did not vest the legal title to the southwest of the northwest quarter of section 21, in the plaintiff. He was bound to have the sheriff's deed. R.S. 1909, sec. 2596. (8) If the deed be defective, or does not properly describe the lands, the purchaser's remedy is to bring the matter to the attention of the court in which the sale was had, by motion showing the facts, and upon such motion obtain an order of the court for a new and corrected deed from the sheriff. R.S. 1909, sec. 2597; Howell v. Sherwood, 242 Mo. 513.
STATEMENT BY THE COURT.
On the 18th of January, 1908, the sheriff of Saline county executed to plaintiff a deed to the following tract of land, which had been sold by him under a judgment in partition between the devisees of the former owner of said land; to-wit: "the southwest quarter of the northwest quarter of section 21, township 51, range 20, in Saline county, Missouri, subject to the survey as to the south line made by Frank M. Latimer, surveyor of Saline county, Missouri, on the 25th and 26th days of November, 1907, and recorded in Surveyor's Record Book J, page 190, as establishing the south line, and subject to the right of the tenant, O. A. Pemberton, to remove the fence built by him as tenant along the south line." The said O. A. Pemberton was the owner, at the time of his purchase of the above tract of land, of a quarter section lying immediately south of it, and was also in possession of that sold in the partition proceeding, as tenant of the parties to that suit. The plaintiff brought an action based on the sheriff's deed to him and a quit-claim deed to him from certain of the parties to the partition suit, to recover "a strip of land off the south side of the southwest quarter of the northwest quarter of section 21, township 51, range 20, 130 feet wide at the west end thereof and 104 wide at the east end thereof." The first count of the petition was in ejectment, and the second count under the special statutory proceeding for trying titles of conflicting claimants. [R.S. 1909, sec. 2535.] The theory of plaintiff's action was, that all the strip of land described in the two counts of his petition was conveyed to him by the aforesaid terms of the sheriff's deed executed in the aforesaid partition proceeding and a portion by the deed of the quit-claimers. The amended answer of defendant as to the first count was a general denial and a further defense, that the parties to the partition suit under which said sheriff's deed was made were the owners in fee of the land described in that deed and only claimed title to the south boundary line located by said Latimer, and caused a statement to that effect to be made on the day of the sale under the partition suit, and that said plaintiff purchased at such sale only the land contained in the fractional section which lies north of the line surveyed and located by said Latimer. All of which is pleaded as matter of estoppel on the part of the plaintiff to question the accuracy of the said Latimer line of survey. The defendant interposed the same defenses to the second count of plaintiff's petition. Plaintiff replied by a general denial of the new matter contained in defendant's answer, and alleged further that the order of the circuit court in the partition suit directed the sheriff to sell "the southwest quarter of the northwest quarter of section 21," and that the sheriff duly advertised that he would sell the southwest quarter of the northwest quarter of section 21, township 51, range 20; but "that at the time of said sale the sheriff without any authority from said court stated that he would sell said land subject to the survey as to the south line made by Frank M. Latimer, surveyor of Saline county, Missouri, on the 25th and 26th days of November, 1907; that at said sale the plaintiff bought said southwest quarter of the northwest quarter of said section 21, for the price and sum of $ 3740, and said sheriff executed and delivered to plaintiff a deed therefor; but after describing the same in said deed as "the southwest quarter of the northwest quarter of section 21, township 51, range 20;" without any authority from said court, or any other authority whatsoever, added the words, "Subject to the survey, as to the south line made by Frank M. Latimer, Surveyor of Saline county, Missouri, on the 25th and 26th days of November, 1907, as establishing the south line, and recorded in Surveyor's Record Book J, page 190, as establishing the south line." The reply of plaintiff further stated that the true south line of said fractional section had been recognized for sixty years by the owners of each side thereof as including the strip of land sued for and described in the petition, which lies south of the Latimer line of survey. Plaintiff prayed in his reply that the following terms, to-wit, "Subject to the survey, as to the south line, made by Frank M. Latimer, Surveyor of Saline county, Missouri, on the 25th and 26th days of November, 1907, and recorded in Surveyor's Record Book J, page 190, as establishing the south line," be construed as surplusage in the sheriff's deed and as not prejudicing the title of plaintiff to the land in controversy.
On the trial there was evidence tending to show that at the time of the partition sale, defendant was in possession of the fractional section of land referred to in the sheriff's deed as the tenant of the parties to the partition suit, and was also in possession of the strip of land for which this...
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