Ware v. Johnson

• Decision Date: 28 February 1874
• Citation: 55 Mo. 500
• Parties: JOHN H. WARE, Respondent, v. WILLIAM JOHNSON, et al., Appellants.
• Court: Missouri Supreme Court

55 Mo. 500

JOHN H. WARE, Respondent,

v.WILLIAM JOHNSON, et al., Appellants.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Buchanan Common Pleas.

Vineyard & Chandler, for Appellants, presented the following among other points:

I. Plaintiff could not combine in one count trespass for cutting and carrying away timber, and an action in equity, to restrain defendant from further trespasses. (Peyton vs. Rose, 41 Mo., 257; Jones vs. Moore, 42 Mo., 413; Henderson vs. Dickey, 50 Mo., 160; Curd vs. Lackland, 43 Mo., 139.)

II. An action of trespass is one for injury to the possession; and plaintiff had none. He was endeavoring to test his title to land not in his possession by an action in trespass, which cannot be done. (Cochran vs. Whitesides, 34 Mo., 417; Draper vs. Shoot, 25 Mo., 197.)

III. Although the court might have regarded defendant's title as defective, still if possession was taken under it and held adversely to plaintiff, defendant ought to have been permitted to show the fact.

IV. The sheriff's deed ought to have been excluded. No surveyor, from the description contained in it, could tell where the land was.

Allen H. Vories, for Respondent.

I. Neither courts of equity nor courts of law can carry into effect the incomplete execution of statutory powers, nor reform sheriffs' deeds. (See Moreau vs. Detchemendy, 18 Mo., 522, 531; Moreau vs. Branham, 27 Mo., 351, 364; Hubble vs. Vaughn, 42 Mo., 138; Abernathy vs. Denny, 49 Mo., 468.)

II. There is no method known to the law by which his deed can be reformed, so as to make a good title to him; neither can evidence in aid of it be admitted. (See King vs. Fink, 51 Mo., 209, 212.)

III. Appellants answering over, cannot avail themselves of any grounds alleged in their demurrer as to insufficiency of pleadings. (See Freeman vs. Camden, 7 Mo., 298; Wagn. Stat., 1036, § 19; Pickering vs. Miss. V. & N. Y. C. 47 Mo. 461.)ADAMS, Judge, delivered the opinion of the court.

This was an action of trespass commenced in the Nodaway Circuit Court, and taken by change of venue to Buchanan county. The trespass complained of was for cutting timber on lot 2 of section 30, in township 65, of range 37, situated in Nodaway county, which the plaintiff alleged belonged to him. The defendants by their answer denied all the allegations of the petition, and alleged title in themselves to the land in dispute, under and by virtue of a sheriff's sale of the land as the property of Robert Russell. They alleged that the sheriff sold this identical land, but in his deed, by mistake, described the land as the north half of the west half of lot 2 of the south-west quarter of section 30, township 65, of range 37. They charge that the plaintiff took his title with full knowledge of the defendant's title and of the alleged mistake; and ask that the plaintiff be estopped from setting up claim to said land. That part of the answer, setting up the alleged mistake in the sheriff's deed, was on motion of the plaintiffs stricken out and the defendants excepted.

Both parties claim title under Robert R. Russell as the common source of title, and the evidence proved that Russell held the legal title by regular conveyances from the patentees under the United States. The plaintiffs claimed title under a sheriff's deed on a sale made on the same judgment against Russell, under an execution subsequent to that under which the defendants claim. The evidence showed that section 30 referred to, was divided into 11 lots, numbered consecutively from 1 to 11, and that there was only one lot in the section, numbered 2. It was also in evidence, that the land was only valuable for the timber, and was subject to overflow, and not suitable for cultivation. The defendants in the progress of the trial offered to prove that they took possession of the land by using it in connection with their farm for fire wood, and cutting timber for saw logs, and that they took such possession under the sheriff's deed under which they claim, and held it up to the commencement of this suit. This evidence at the instance of the plaintiffs was excluded, and the defendants excepted. The defendants also offered their sheriff's deed in evidence, and offered evidence to prove the alleged mistake in the same, which were excluded; and also raised the same points by way of instructions on the trial. The case resulted in a verdict and judgment for plaintiffs. The defendant filed a motion for a new trial, saving the same points excepted to on the trial, which motion was overruled, and they have appealed to this court.

1st. A sheriff, in sales of land on execution, acts in the exercise of powers conferred on him by statute. His authority to make a deed is derived from the statute, and no court except the court under whose process he acts, can supervise his proceedings. If he actually levies on a particular tract of land and sells the same as levied on, and by mistake falsely describes the land in his deed, he may, under the supervision of the court issuing the process, make a new deed which will as to parties and privies and all purchasers with notice, relate to the time of the sale, and pass the title from that time. If the sheriff who made the sale becomes incapacitated to make the new deed,...