Swisher v. Pemberton

OPINION. BOND, J. (after stating the facts as above). As a basis for his prayer in his reply to defendant’s answer to strike out the clause in the deed to him from the sheriff which delimited the south boundary of the land sold by the sheriff, the plaintiff invokes the class of cases which hold that clerical errors or misstatements contrary to the general purposes expressed in the deeds of sheriffs, administrators and other ministerial officers of the -court may be stricken out as sur-plusage in the interpretation of such, instrument. There is no doubt about the correctness of this rule in cases to which it is applicable. It has often been applied in instances where a particular description in a deed is repugnant, to its general intention and purpose. [Agan v. Shannon, 103 Mo. 661; Thomson v. Thomson, 115 Mo. l. c. 63, et seq.; Evans v. Greene, 21 Mo. l. c. 208.] All of these rulings, however, upon the proviso that the deed or instrument shall be left with a sufficient description to identify lands sold after the elision of the inconsistent portion thereof. [Presnell v. Headley, 141 Mo. l. c. 191.] For in that event the deed may be enforced in a legal action, otherwise other steps are necessary to obtain a sufficient deed before it can be enforced as a muniment of title. [Dixon v. Hunter, 204 Mo. l. c. 387; Howell v. Sherwood, 242 Mo. l. c. 535.] But none of the cases go to the extent of holding that a deed which is insufficient to carry the legal title may be amended when introduced ás evidence on the trial of an ejectment suit by such additions thereto as will make a valid deed of an invalid one. Neither have we been able to find any case which holds that where a sheriff or administrator or other agent of the court is directed to [208] sell a particular tract of land and either fails or refuses to sell all of the land as defined and hounded in the authority given to him, that his deed for the lesser quantity actually sold by him may be construed as a deed for the whole of the tract which he was authorized to sell but all of which he did not in fact sell. If is self-evident that the deed of the agent to sell can only carry title to what was actually sold by him. But that he could grant something which he had not sold is a proposition which is disproved by its mere statement. ’ In the case at bar, whether the sheriff was directed to sell the strip of land in controversy is wholly immaterial in the light of his subsequent actions. He did not sell that strip of land, and it was publicly announced when he was making the sale that he would not ,sell that particular piece of ground and that he would sell the fractional section only to an existing and duly recorded boundary line on the south. After the sale he made his deed in strict accordance with what was actually done. As far as the sale is concerned, the strip of land sued for has never been disposed of under the facts in this case. For it was not offered and no bids were received for it, and it is not conveyed in the deed made by the sheriff. If the parties to the partition proceeding under which this sale was made had any title to that strip of land prior to the sheriff’s sale, they have that title still unless they have conveyed it. It unquestionably did not pass under the sale and deed of the sheriff. The learned counsel for appellant is wholly mistaken in the view, that there is any legal warrant for the effacement of the south boundary line of the fractional section recited in the sheriff’s deed. If that is stricken out, then the deed would- not speak the truth, but would purport to convey what has not been sold so far as it might be shown in the proqf that the fractional section was located so as to include the land [209] sued for or had been extended over it by acts giving its owners title under the Statute of Limitation. The learned counsel for appellant are entirely correct in stating that the authority of the sheriff to sell in this case was limited by the interlocutory judgment in partition. [Loring v. Groomer, 110 Mo. 632.] And the sheriff should have conformed his actions strictly to this authority. But if the contention of counsel for appellant is correct, i. e., that the strip of land sued for is contained within the fractional section which the sheriff was directed to sell, then the sheriff disregarded his duty in the matter, for that he did not-sell that particular parcel of ground is plainly evidenced from his statements to the bidders at the sale and from the contents of the deed which he made to the purchaser. We are unable to find any theory of law upon which plaintiff could recover on the count in 'ejectment as being the owner in fee of the property in dispute under the sheriff’s deed exhibited to establish that fact; and we think the trial court was clearly right in holding that there could be no recovery on that count of plaintiff’s petition. II. The right of plaintiff to recover on the second count of his petition presents a different question. That count was based upon section 2535, Revised Statutes 1909, providing a procedure for the trial of titles between rival claimants of real estate. The very issue presented was one of comparative title between the plaintiff and defendant as to this specific piece of land. [Richards v. Coal & Mining Co., 221 Mo. 149.] Plaintiff exhibited in sustention of his claim a quitclaim deed from certain of the parties to the partition suit. There was evidence tending to show that the ancestors of all the parties to the partition suit had acquired a fee simple title to this particular land under the Statutes of Limitation if not otherwise. This being [210] the case, plaintiff was entitled to a finding on the count of the petition as to his rights under the quit-claim against any adverse claim of defendant. The court should have made that finding and should have embraced its finding on the previous count in ejectment as well as the latter finding in one general judgment. The judgment in this case is reversed and the cause remanded to be tried in conformity with this opinion. Woodson, P. JLamm and Graves, JJ., concur.