Talley v. Schlatitz

• Decision Date: 01 March 1904
• Citation: 79 S.W. 162,180 Mo. 231
• Parties: TALLEY v. SCHLATITZ et al.
• Court: Missouri Supreme Court

79 S.W. 162

180 Mo. 231

TALLEY v. SCHLATITZ et al.

Supreme Court of Missouri. Division No. 2.

March 1, 1904.

TAXATION—TAX DEEDS—MISTAKE IN DESCRIPTION—COLLATERAL PROCEEDINGS—PROOF OF MISTAKE—AMENDMENT OF DEED.

1. Where, in ejectment, defendants relied on a tax deed which failed to describe the land involved, evidence as to the intention of the sheriff in making the deed, for the purpose of showing that he intended to describe the land involved, was not admissible.

2. Rev. St. 1889, § 3218, provides that, after an officer has executed a defective conveyance of land, the purchaser may petition the court from which the execution issued, and, if the court be satisfied that the purchase money has been paid, the court shall order the officer to execute a deed. Held that, where a tax deed, as well as the notice of sale, described other land than that for which the execution was issued, the purchaser was without remedy, since he could not obtain a new deed under the statute, because the notice of sale erroneously described the land, and in the amended deed the sheriff could not state that he gave the proper notice.

Appeal from Circuit Court, Bollinger County; Jas. D. Fox, Judge.

Action by Jesse R. Talley against F. C. Schlatitz and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Moses Whybark, for appellants. W. M. Morgan, for respondent.

BURGESS, J.

This is an action of ejectment for the possession of 60 acres of land, described by metes and bounds, in Bollinger county. The petition is in the usual form, and the answer a general denial. The case was tried before the court, a jury being waived. The trial resulted in a judgment in favor of plaintiff for the possession of the land and $48 damages. Defendants in due time filed motion for a new trial, which was overruled, and they bring the case to this court by appeal for review.

The facts, briefly stated, are substantially as follows: On the 25th day of February, 1860, the plaintiff acquired, by deed from Essau Presnall and wife, the title to about 60 acres of land, including the land in question, in section 26, township 33, range 10 east, in Bollinger county. The land was in two parcels, one of which contained about 20 acres, and is located in the northwest quarter of the southeast quarter of the section, and the other, containing 36½ acres, located in the southwest quarter of the northeast quarter of the section, and joins the 20-acre parcel on the north. The 36½-acre parcel is described in the deed from Presnall and wife to Talley, as follows: "All of the southwest quarter of the northeast quarter of section 26, township 33, range 10, not heretofore conveyed by the said first parties [Presnall and wife] to Christopher Seabaugh." The part conveyed to Christopher Seabaugh was a small three-cornered lot, containing 3½ acres out of the 40 acres, to which neither Talley nor the defendants ever made any claim. On the 6th day of August, 1895, the collector of the revenue of Bollinger county instituted suit in the circuit court of said county against the plaintiff herein, Jesse R. Talley, to enforce lien for the delinquent taxes for the years 1891, 1892, and 1893, against this 36½-acre tract, in which it is described in the petition, and the tax bill upon which the suit was predicated, as: "Tract No. 1-36, 50 acres, part of S. W. ¼ of N. E. ¼ of section 26, township 33, range 10 east." Personal service of process was had on Talley, who was the defendant in that suit, on the 8th day of August, 1895. At the September term, 1895, of said circuit court, judgment by default in the suit for taxes was rendered against Talley for the amount of taxes sued for and costs, enforcing a lien against the 36 50/100 acres of land, describing it just as it was described in the petition and tax bill in that suit. Thereafter, on the 1st of February, 1896, a special execution was issued by the clerk of the circuit court on this judgment, directed to the sheriff of Bollinger county, and returnable to the March term, 1896, of the Bollinger circuit court. This execution describes the land the same as the tax bill, petition, and judgment. The sheriff sold the land under this execution, an defendant Schlatitz, for himself and codefendant Pohlmann, his son-in-law, who was not at the sale, bought the land for $50, and the sheriff made a deed to them, by name of Schlatitz and Pohlmann, for the southeast quarter of the northeast quarter of section 26, township 33, range 10, and acknowledged it in open court on the 11th of March, 1896. The sale was made by the sheriff on March 10, 1896, at the regular March term, 1896, of the Bollinger county circuit court. In this deed the sheriff recites the date of the judgment and the issue of the special execution against this land, describing it precisely as described in all of the proceedings in the tax suit, and also "that by virtue of the special execution" directing him to sell said real estate, on the 3d of February, 1896, he levied on said real estate, and that "on the 10th day of March, 1896, between the hours of 9 o'clock in the forenoon and 5 o'clock in the afternoon of said day, agreeably to notice, at the courthouse door in my said county of Bollinger, and during the session of the circuit court in said county, at the March term thereof, 1896," he did expose to sale at public auction, for ready money, the above-described real estate, "and Schlatitz and Pohlmann being the highest bidders for the following described real estate, viz., thirty-six acres and fifty one-hundredths, part of southeast quarter of northeast quarter of section 26, township 33, range 10, the said last named above tract was stricken off to the said Schlatitz and Pohlmann for the sum bid therefor by them, as above set forth. Now, therefore, in consideration of the sum of fifty dollars to me, said sheriff, in hand paid by said Schlatitz and Pohlmann, the receipt of which I do hereby acknowledge, and by virtue of the authority in me vested by law, I, David S. Mann, sheriff as aforesaid, do hereby...