Culbertson v. Edwards

GRAVES, P. J. Action to cancel a sheriff’s deed. The plaintiffs are the heirs-at-law of Wm. A. Culbertson and Robert L. Williams. The action involves a section of land in Pemiscot county, which was sold under execution upon a tax judgment in the year 1882. The petition charges that the tax deed was made to the purchaser, John D. Foster, who at the time was judge of the circuit court of said county. It further charges that the sale to Foster was made on September 5, 1882, whilst the land was advertised to be sold — 436 — September 6, 1882. In other words, that the sale was made one day ahead of the time fixed in the notice of sale. As another ground for setting aside the sheriff’s deed, it is charged that the land was sold in bulk and not in its smallest legal subdivisions as required by statute, and that it sold for only twenty dollars when it was worth $1600. The petition also avers that their ancestors, mentioned above, were not residents of Missouri, and that they (the plaintiffs) brought their suit as soon as they were advised that they had any interest in the land. This suit was filed in March, 1905, or nearly-twenty-three years after the tax sale. By their prayer to their petition plaintiffs ask that the tax sale be set aside, “and for such other, further and different relief as in equity and good conscience plaintiffs may be entitled in the premises.” Defendant’s answer is (1) a general denial, (2) specific denials of the vital allegations of the petition, (3) plea of innocent purchasers for value, (4) the five-year Statute of Limitations. They also in one paragraph of the answer aver that they claim the fee simple title to the land, and ask the trial court to ascertain and determine the title thereto. The judgment, nisi, was for the plaintiffs, and defendants have appealed. Respondents do not brief the case here! Points made, so far as necessary for the final determination of the case, will be noted in the opinion. I. It will be observed that there are but three alleged reasons assigned by the plaintiffs for cancelling the deed, (1) because the land was sold m solido. (2) because the purchaser was the judge of the court under whose judgment the land was sold, and (3) because the sale was made one day prior to the day fixed by the notice of sale. As to the first ground, it is evident that the petition fails to state facts sufficient to make it good un — 437 — der the rule announced in Shelton v. Franklin, 224 Mo. l. c. 363, whereat we said:- “Prom the cases we take the rule to he (1) that the statute is directory, (2) that by it some discretion is allowed the officer, (3) that an abuse of this discretion may be and should be reviewed by the court either upon motion or direct attack by a bill in equity, (4) that this attack should be made in seasonable time, (5) that the abuse of the sheriff’s discretion by a sale in solido is only an irregularity which, may render the deed and sale voidable and not void. “To these conclusions may be added that the attack by bill in equity is good as against a subsequent purchaser with knowledge or. notice of the unwarranted violation of the sheriff’s discretion and knowledge or notice of the injury done the execution debtor thereby. “So that under these authorities the deed in question is not' void upon its face for the reason now under discussion, but is only voidable. To make a case the plaintiff would have to show (1) a sale in solido, (2) that such was abuse of the discretion lodged with the sheriff, (3) consequent damage and injury to the judgment debtor, (4) a seasonable application for redress, and (5) if against a subsequent grantee knowledge and notice upon his part of the things mentioned in the preceding paragraph, and reiterated in the first three numbered subjects in this paragraph.” The defendants in the case at- bar are not the purchasers at the tax sale, and there is no allegation in the bill that they bought with the knowledge that the sheriff had abused his discretion in selling the land in solido. But in this regard the bill is aided by the answer, which specifically pleads that defendants purchased without such knowledge. But whilst this is true, yet there is no allegation in the bill which indicates “a seasonable application for redress.” This suit was brought twenty-three years after the sale, — 438 — and the only reason for the delay assigned in the petition is: “Plaintiffs further state that, at the time of the sale of the land herein described and referred to, the said Wm. A. Culbertson, Wm. S. Culbertson and Robert L. Williams were non-residents of the State of Missouri, and were at all times up to the date of the sale of the land nonresidents and up until their respective deaths and at no time did they have any agent to do any authorized act or thing that would in any way estop them from claiming or ascertaining their rights or in any way deprive these plaintiffs from so doing, and that these plaintiffs herein employed counsel to institute this proceeding immediately upon being advised of their interest in the real estate aforesaid and of learning the facts herein set out. ’ ’ These facts, even if true, could not excuse a de lay of twenty-three years. The Shelton-Franldin case is one in which all the questions were thoroughly threshed out by this court, and under it the bill in this case is at least defective in the particular above mentioned. But we need not rest a reversal of this judgment upon this ground. The whole record is against plaintiffs. We therefore take the several contentions made by them in order. II. The proof shows a sale in solido, but it fails to show that these defendants had any knowledge of the fact that the sale was so made, or any knowledge of the fact that if so made, the then owners of the land had been injured thereby. On the contrary the proof affirmatively shows that these defendants (who were subsequent grantees of the tax-sale purchaser) had no knowledge of the fact that the land was so sold. Other proof further shows that land so situated would have sold to a better advantage in solido than in small tracts. In such case the sheriff in his discretion could so sell it. The case was tried before the Shelton-Franklin case, and the trial court evidently took the — 439 — position that a sale in solido ipso facto voided the deed. Such is not the la,w. Later cases have followed the Shelton-Franklin case on the question here involved. [Shelton v. Horrell, 232 Mo. 358; Griffin v. Franklin, 224 Mo. 667; Turner v. Hunter, 225 Mo. 71.] We can say in this case as Lamm, J., said in Griffin v. Franklin, 224 Mo. l. c. 682: “In the case at bar the petition alleged that the land was sacrificed by. selling en masse, but plaintiff introduced no proof to sustain the allegation. The defendant, however, .assumed the laboring oar in showing that no injury resulted to the landowner by putting up the property at vendue in bulk and knocking it down to the highest bidder in that, form.” The positive evidence in this case is that owing to the worthlessness of the lands in question at that time, sales in bulk got better results than sales of smaller portions thereof. The plaintiff in the case at bar made no proof upon the question, and let the case rest upon defendant’s proof. On the facts, therefore, the finding should have been for defendants. III. The facts are that John H. Foster was the circuit judge and bought the land at the tax sale, and that he presided over the court when the sheriff’s deed was acknowledged. This does not make the deed void under the decisions of this State. In Lewis v. Curry, 74 Mo. l. c. 52, this court said: “There is no objection to the sheriff’s deed because of its acknowledgment, either as to form or substance. The acknowledgment.was not taken before the Hon. Samuel Richardson, one of the grantees in the deed, but it was taken before the court over which Judge Richardson presided. [McClure v. McClurg, 53 Mo. 173.] As the deed had to be acknowledged in open court, it, of necessity, had to be acknowledged in the court from whence the execution issued, else the acknowledgment could not have been taken at all, since — 440 — the statute does not authorize the judge of an adjoining circuit to be called in to sit and hold court for the mere purpose of taking the acknowledgment of a sheriff’s deed. These considerations sufficiently show that the rule ordinarily applicable where an acknowledgment is taken before an individual, as for instance, a notary, who is named as a grantee in the deed, does not apply to cases of this sort.” In the Lewis case, supra, there was a judgment of the circuit court foreclosing a mortgage. Judge Richardson was one of the purchasers at the sale and one of the grantees in the deed. The sheriff acknowledged the deed before the court over which Judge Richardson was then presiding. The language above quoted was upon these facts. This ruling precludes the plaintiffs upon this point in their petition. TV. Next it is urged in the petition that the sale was made one day prior to the advertised date. Upon this question the trial court found against the plaintiffs. Proof was taken and the court found that the sale was actually made on September 6th, 1882. Under this proof the court could not have well found otherwise. The recitation in the tax deed of September 5, as the day of the sale was a mistake. This question, like the one last discussed, has received elaborate consideration by Bliss, J., in Buchanan v. Tracy, 45 Mo. l. c. 442, whereat he concluded a long discussion of the point thus: “But it does not follow that every essential fact or transaction must be recited truly, in all its details, and that a mistake, as of date, is the same as a total omission. This would exclude the toleration of any clerical error, and would be' contrary to our whole system. When a date is material — is of the essence of the act it must be truly given; but this sale would be just as lawful on the 4th as on the 5th. A distinction should be made between a total omission of a necessary re — 441 — cital, or between sncb error in it as would render tbe proceeding invalid, and a clerical mistake that in no way affects the instrument on its face. Such was tbe mistake considered in tbe case of Stewart v. Severance (43 Mo. 322), and I can see no grounds for tbe alleged difference between tbe clerical errors of a sheriff and clerk. Tbe same reasons bold why tbe purchaser should not be affected by tbe one as tbe other. Tbe recitals are not ibis acts, and bis deed is good upon its face. Tbe term refers not so much to tbe character of tbe officer who makes tbe mistake, as to tbe character of tbe mistake; and tbe principle involved in that case is precisely the' same as in this. Tbe statute as expressly requires tbe date of tbe judgment to be given as tbe time of tbe sale,, and, besides, an error of tbe clerk in tbe date of tbe" judgment is almost of necessity carried by tbe sher-*" iff into tbe deed. Tbe fact of a judgment duly rendered, and tbe fact of a public sale during a term of court, are both material. They are tbe foundation of tbe sheriff’s deed, and it is worthless without reciting them. But it is not material whether tbe judgment -be taken or tbe sale be made one day or another of tbe term; hence, tbe mistake in tbe exact day is an immaterial one. It barms no one. In tbe case at bar tbe deed shows upon its face that tbe proceedings were legal, as they were in fact, and mere clerical errors, to which all officers are liable, should not, upon an immaterial point, be permitted to invalidate a regular proceeding. ” , Under tbe law as stated by Judge Bliss,, there is nothing in this contention of plaintiffs and tbe trial court was evidently of tbe same opinion. Prom this it follows that tbe judgment, nisi, must be reversed, and tbe only question is as to whether or not we should go further. That question we take next. — 442 — V. Defendants William R. Edwards and Ben K. Edwards ask in their answer that the court ascertain and determine the title to this land and pray that they be declared to be the owners thereof. Should this be done? We think so. The facts are these. William C. Edwards bought the land at administration sale, had in winding up the estate of John H. Poster. He took the title in his name as trustee for Ms two sons, William R. and Ben K., who were then minors. He makes no claim to the land as his own. If the tax deed is good as to the defendants, ás we have held, then they have a clear record title to the land. We shall not discuss the Statute of Limitations, because it cannot be said that twenty-three years is a reasonable time in which to attack what may be deemed a voidable tax sale or deed. The trial court should have decreed title in the two defendants, William R. and Ben K. Edwards. That this may yet be done, we will reverse the present judgment and remand the cause with directions to the circuit court to enter up a proper decree ascertaining and determining the title to the land in dispute to be in these two defendants, and decreeing the title to be in them in fee simple. All concur; Valliant, J., in result only.