Rector v. Hartt

8 Mo. 448

• Court: Supreme Court of Missouri
• Decided: January 15, 1844
• Status: Published

Opinion

Scott, J.,

delivered the opinion of the Court.

This was an action of ejectment, commenced by G. C. Hartt against Charles Rector, for the north-west fractional quarter of section thirty-five, in township forty-nine of range seventeen west, situate in Cooper county: the plaintiff had verdict and judgment.

On the trial, the plaintiff gave in evidence a patent from the United States to Henry Carroll, G. C. Hartt, and Robert Wallace, assignees of the pre-emption of Hannah Cole, for the tract of land in controversy, dated 19th November, 1822, and proved that the defendant'was in possession of a part of the tract of land in dispute at the commencement of this suit.

The defendant read in evidence the transcript of a judgment of the Supreme Court of this State, in the name of T. A. Smith vs. G. C. Hartt and G. Tennille, and an execution thereon for the sum of $580 and costs, directed to the sheriff of Cooper county. It appears from the record, that, under this writ, the sheriff sold the land in controversy, together with other real and personal estate of G. C. Hartt, for the sum of $360 31¿, on the 17th of February, 1829. A deed was executed by the sheriff to W. M. Adams, the purchaser of the land in dispute, which was described in the advertisement of sale as the north-west fr. qr. section thirty-five of range seventeen west, and of township forty-nine, containing 152 acres, or thereabouts. The deed conveyed to him, for the sum of $100, all the right, title, claim, and interest of the said G. C. Hartt in the said tract. This deed was dated the 17th February, 1829, and acknowledged at the same term of the Cooper Circuit Court of the same year.

The plaintiff then read in evidence a plat of the town of Boonville. This plat was not authenticated in any manner : it was not signed or acknowledged by any person. The clerk of the Cooper Circuit Court testified that he had been in the office about ten years; that the plat was in the office when he first went into it, and is attached by a wafer to the last page of deed-book A, and immediately following the last deed in said book, which was recorded on the 24th June, 1820.

A second plat of the same town, similar to the first, with an addition of town lots, was also given in evidence. No marks of authenticity were on this plat: in this respect it was like the first. There was a memorandum on the plats, that full lots are ninety feet by one hundred and fifty; that the streets are seventy-five feet wide, and the alleys fifteen. The last plat was laid off on a page of deed-book B, and immediately succeeding the page upon which a deed is recorded, dated 28th February, 1824, and immediately preceding the page on which a deed was recorded on the 1st of April, 1824. The county surveyor being introduced as a witness, in answer to the question whether the first plat was a plat of the town of Boonville? testified, that the lots, names and widths of streets, corresponded with some in Boonville, and that he had always taken it to be a plat of said town ; that the last plat only varies from the first by a small addition to the number of lots ; that for seven or eight years he has surveyed lots in Boonville, and been guided by one or the other of said plats ; he knew of no other plat but these, which he first saw in the year 1835; that there are 235 lots on the plat, forty-eight of which are on the land in dispute.

The town of Boonville was first laid off in 1816 or 1817: the town was first built upon the land in dispute : at one time there were eight or ten families upon it; before 1830 they all, except one, had removed from it. A witness testified, that, as agent for Mary Gilmore, he, with Morgan and Lucas, made a donation of land to Cooper county for a seat of justice, in 1817 or 1818, and that he knew lots were sold prior to that time by Morgan and Lucas ; that he, as attorney for Mary Gilmore, referred to a plat of Boonville, in conveying, as early as 1819; that the town was laid off by Morgan and Lucas, on a New Madrid location; that Hartt pretended to no claim until after the town was laid out, and always claimed adversely to Morgan and Lucas. The plaintiff gave in evidence three several deeds — one executed by himself; one by himself, H. Carroll and B. Lockhart; and one by the three last-named grantors and Robert Wallace, bearing date respectively 28th December, 1821, 26th January and January 29th, 1820, releasing to the several alienees therein named, for the sum of five dollars, by them severally paid, all their right, title, interest and estate in those several lots in the town of Boonville, and describing the said lots by reference to the town plat above-mentioned : one of these three lots was on the tract of land in dispute. Witnesses intimate with plaintiff testified, that they never knew him to recognize the town laid out by Morgan and Lucas, who claimed adversely to Hartt; that all the families but one on the fractional quarter section in controversy abandoned it before February, 1829, and went to live on lots donated to the county. No stakes, stones, or monuments designated the boundaries of the lots ; that the land was covered with brush and wood ; no indication of a town; but one road passed through it; it was known that part of it had been laid off into town lots ; it was not enclosed. Hartt frequently complained of persons cutting timber in streets and alleys, and forbade them from so doing. A son of the only tenant who continued upon the land, testified that he came to Boonville in 1818, and lived with his father until his death in 1826; that his father never claimed title under Hartt; that Hartt frequently forbade him from cutting trees on the streets and alleys; that there were four different occasions upon which Hart interdicted him from cutting timber ; that on two occasions, after he had cut wood in the streets, Hartt took it from him, and hauled it away ; that he was once cutting a bee tree in a street, and Hartt came to him and forbade him from so doing; he told Hartt he was cutting in a street; Hart replied, “ It is immaterial — it is all private properly ; ” that he cut trees between the years 1820 and 1825.

Robert Wallace testified, that he was one of the part owners of the pre-emption on the N. W. fr. qr. sec. 35, T. 49, R. 17; that he had sold lots by their number, according to the plat, but did not recollect ever to have heard Hartt speak of town lots, as distinguished from the other land in Hannah Cole’s pre-emption; but it was usually called, among the owners, “ The Hannah Cole pre-emption ; ” that he came to Boonville in 1817; that Hartt, Carroll and himself never laid off any town lots on the land, nor did they ever offer any lots at public or private sale ; the New Madrid claim was located in the name of Thomas Hupp; that he made a deed- of release to Thomas Rogers, above mentioned, without any other consideration than to release any right he might have under the pre-emption, and to quiet his title under the New,Madrid claim; that he had an interest of about one-sixteenth in the pre-emption.

Amongst others, the court gave the jury the following instruction: that, if the jury find that before the issuing of the execution against Hartt and Tennill, under which the sale to Adams was made, a portion of the quarter section of land in controversy, embracing lot No. 113, was, and had been, laid out into town lots, streets and alleys, for separate enjoyment by persons claiming the land adversely to Hartt, or those under whom Hartt claims, and that a plat of the lots, streets, and alleys had been, and was, deposited in the office of the clerk of the Circuit Court of Cooper county; and that afterwards, and before the issuing of the said execution in favor of Smith, Hartt, or those under whom Hartt claims, adopted such laying out of ground into town lots, streets and alleys, by conveying to others any of such lots so laid out, and describing the same in the deed of conveyance by reference to the plat, or by any other act; and further find, that the sheriff sold the whole quarter section in one lot to Adams,' as alleged in Adams’ deed; that such sale is void, and does not divest the plaintiff of his title created by the patent, unless the jury find, from the evidence, that Hartt desired the sheriff to sell the whole quarter section together.

The merits of the case will arise upon this instruction.given by the court, at the instance of the plaintiff, Hartt. As much has been said in relation to the dedication of the streets and alleys on the N. W. qr. sec. 35, (the land in dispute), and as a contrariety of opinion is entertained as to the evidence of a dedication, we will bestow a little attention on that subject, although, in our opinion, it is beside the points on which this case must turn. One cannot but remark on the novelty of the position of the parties, in relation to this question. The owners of lots in a town or city are not contending with the original proprietors of the ground for the use of streets and alleys, which, they allege, has been granted to the public, but the proprietor himself is endeavoring to show, that he has made a dedication of streets and alleys for the benefit of others. If the owner of land had an intention or desire of making such a disposition of his property, it is strange that he should be at any difficulty in manifesting it, when he could so easily have placed the fact beyond all cavil or doubt. The doctrine seems well settled in America, that an owner of land may, without deed or writing, dedicate it to public uses. No particular form or ceremony is necessary in the dedication: all that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation. (6 Peters.) So it has been held, where the owner of land in a city sells building lots, bounding them by streets of a specified width, as laid down on a map, but not actually opened, the purchasers acquire a legal right, as against their grantor, to have the streets opened to the width delineated on the map, and the streets will be deemed to be dedicated to the public. (8 Wend. Rep.) Admitting the correctness of these principles- — and they go the full length of the doctrine contended for by Hartt — will they warrant the instruction given by the court below ? That instruction assumed, that Hartt adopted the plan of the town of Boonville, by conveying to others any of the lots designated on said plan, and describing the same in the deed of conveyance by reference to the plat: that is, if the jury found that he had conveyed a lot by reference to the plat of the town, then they ought to find, that he had made a dedication of the streets and alleys to the use of the public. Let it be borne in mind, that Hartt himself is endeavoring to show that he made a dedication, and is seeking to deprive another of his right in consequence of such an act. It was easy for him to have put this matter beyond all uncertainly. As he is attempting to obtain an advantage in consequence of having made a dedication, it will be no hardship to require of him ample proof of the fact, for it was in his power to make it. He is not to he allowed to adopt a mysterious course in the disposition of his property, and lie by and take advantage of errors which he has caused by his own conduct. As Hartt set up the pretension of a dedication, what rule or principle prevented the defendant from showing that no such dedication was made ? If the public was interested in establishing the fact that these lots had been set apart for public use, and enjoyed as such, and private and individual rights acquired with reference to it, the law would consider it in the nature of an estoppel in pais, which would preclude the original owner from revoking such dedication. (6 Peters’ Rep.) All the principles contained in the books in reference to the dedication of private property for public use, have been maintained and adopted, and asserted in controversies in which others have been contending with the owner. It is a new doctrine that a party can, without authority of law, create an estoppel for himself, and be permitted to say he is estopped by his own act. It is for others to interpose the objection of an estoppel, and not for him who created it. If the jury had not been tied down by the instruction of the- court, it is impossible to read the evidence preserved in the record, and entertain a moment’s doubt -but that they would have found a verdict, negativing the fact that there had been any adoption by Hartt of the plat of the town of Boonville. The town was laid off by Morgan and Lucas, who claimed- adversely to Hartt: afterwards, Hartt and others purchased a preemption from Hannah Colo, which covered part of the land laid off into lots. Hartt and his co-tenants, after acquiring the pre-emption, released their right and title to three lots on the town plat, and in the deeds described the lots by reference to the plat. This is all the evidence necessary for him, by-the terms of the instruction, to introduce, in order to establish a dedication ; and, opposed to this, we find Hartt claiming adversely to Morgan and Lucas, prohibiting the cutting of tree^ on the streets and alleys on various occasions, taking away wood cut by others, and when told it was on streets and alleys, saying, “ It was immaterial — it was all private property.” He never sold a lot, unless the three quit-claim deeds can be called such. May not the reference to the plat, in the quit-claim deeds, have been made simply to enable him to describe the lots, as otherwise it might have been a matter of difficulty to give them a sufficient designation ? But if anything were wanting to show that Hartt never intended to adopt the plat of Morgan and Lucas, it is his failure or neglect to cause a map or plat of the town to be made out, acknowledged, certified and deposited with the recorder, in pursuance of an act concerning plats of towns and villages, approved 18th December, 1824. That act was retrospective; and, by the second section, required that in all cases where any town, or addition to any town, shall have been laid out within this State, previous to the taking effect thereof, the proprietor of such town should, within one year after the taking effect of said act, cause a map of such town to be acknowledged in the same manner as a deed for land, certified and deposited with the recorder of the county in which the town is situate, otherwise no lot could be sold, under a penalty of two hundred dollars. There were forty-eight lots on the tract of land in dispute : the title to one only of these lots had passed from Hartt, and that by one of the three quit-claim deeds before mentioned; and no plat was acknowledged and deposited with the recorder within the year prescribed by the said act, ^whereby Hartt was rendered incapable of selling a lot without incurring a penalty of two hundred dollars, a sum much greater than its value, if we may judge of the worth of such property from, the evidence in the record. It is begging the question to say that the dedication had been made prior to the act of 1824, and therefore was not required to be acknowledged and deposited with the recorder.

Thus much as to the effect of the evidence of an adoption of the plan of the town by Hartt; but the admissibility of that evidence may be questioned.

On what principle is a party permitted to introduce his own acts as evidence for himself? We know the declarations or admissions of a party to the record, when against his interest, are sometimes admitted as evidence on his behalf, and so when they constitute a part of the res gesta; but do these deeds, executed by Hartt, fall within either of these principles ? Had this plat been acknowledged and deposited with the recorder, under the act of 1824, it would, have been evidence of a dedication; but Hartt has not adopted that mode of evidencing his intention; and if he is now straitened to do it, it must be laid to his own neglect.

Let it be assumed that Hartt adopted the plat of the town which partially covered the quarter section in controversy; then it is contended by him, that the sale of the land in dispute, by the description of the N. W. fr. qr. sec. 35, T. 49, R. 17, is void, for uncertainty in the description of the property sold. Of the forty-eight lots laid off on the land, forty-seven were the property of Hartt, the only one disposed of being that before mentioned as conveyed to Rogers. So Hartt was the owner of the whole quarter section, with the exception of a single lot! On the other hand, it is contended, that the acknowledgment of a sheriff’s deed is a judicial act, and is in the nature of a judgment of confirmation, which cures all defects in the mode of sale, which the court issuing the process had the power to remedy..

If the court has jurisdiction of the case, the parties, and power to order the sale by a writ, a sale so made and a deed acknowledged cannot be set aside in a collateral action. This principle has been maintained by courts, in States whose mode of disposing of a debtor’s real estate is different from that adopted by our laws. (Baldwin’s Rep., 272.) In Pennsylvania, where this doctrine obtains, the question raised by the defendant in error, in consequence of the mode of conducting sheriff’s sales of real property, would rarely arise. The point is, that the sheriff’s deed is void for uncertainty in the description of the estate sold, just as a common-law deed would be held void for uncertainty, in not describing with sufficient precision the thing conveyed. This illustration, however, is not intended to convey the impression that no more certainty of description is required in a sale and conveyance by a sheriff, of real property, than in the deed of an individual conveying his own estate: in these, the maxim prevails —1! Id cerium esi, quod cerium reddi potest” Not so in sheriffs’ sales. Where land is taken and sold by a sheriff absolutely, without any appraisement or right of redemption in the debtor, the law? at least, has enjoined it on the officer that it shall be done in such a manner as to prevent sacrifices and speculation; hence our courts have adopted the rule, that in sheriffs’ sales no land passes but what the creditor can enable him to describe with reasonable certainty : the land must be sufficiently designated or described. This was the principle of the case of Evans vs. Ashley, and was the principle of the various cases cited in the opinion delivered in that cause. In the controversy now under consideration, the sheriff sells a .quarter section of land, as described on the public survey ; about twenty-five acres of that tract is covered with the plat of a town; the defendant is the owner of the entire quarter section, with the exception of a lot ninety by one hundred and fifty feet; the streets and alleys are unopened, designated by no monuments, covered with brush and timber, with a single highway through it. Can the description of the sheriff be said not to .be reasonably certain? In what respect is it uncertain? Do streets and alleys which have no existence in reality affect the description ? or is it affected for the reason that there has been drawn on- paper a plat of a town, which at some future day may be reared on the land? Does the fact, that a single lot is owned by another, make such a degree of uncertainty in the description as to render the sale void? — or is it to be held, that in a sale by a sheriff, of 152 acres of land, otherwise properly described, the circumstance that a half-acre of the tract- is owned by another is to avoid a sale and conveyance for uncertainty in the description of the estate ? — and because this is true, therefore the reverse of it is likewise so — that a sale of a lot containing a half-acre, by the description of a quarter section containing 152 acres, is likewise valid ? Or will it be contended, that, in the case of Roosevelt vs. Jackson, (13 J. R.) if the sheriff had sold the Harden-burgh patent, instead of all the lands of Lawrence Van Kluch in that patent, that the former description would be sufficient to pass the lands of Van Kluch, but the latter would' not ? If the rule can be evaded in this way, it is not worth the breath that is spent in giving it utterance.

It is next objected by the defendant in error, that the whole quarter section, embracing as well the forty-eight town lots in which part of the tract, was subdivided, as the residue of the quarter' section, containing about 130 acres, was sold in mass, and not in separate parcels, and this is such a gross abuse of power on the-part of the sheriff as does of itself, in point of law, annul the sales, -no matter what may have been the intent of the sheriff or purchaser.

This position asserts the principle, that a sale in mass, by the sheriff, of real property, consisting of separate and distinct parcels, is absolutely void; or, in-other words, that no title passes by a conveyance under such a sale, and the deed will be regarded as a nullity, under whatever circumstances it may be set up. The act concerning executions, (Rev. Code, 1825, sec. 13,) under which the sale in question took place, directs that in all cases where execution shall be levied upon any real estate, the sheriff or other officer levying the same shall divide such property, if susceptible of a division, and sell only so much thereof as will be sufficient to satisfy such execution, unless the defendant shall desire the whole of any .tract or lot of land to be sold together, in which case it shall be sold accordingly. We regard this statute as directory. A violation of its injunctions will not make a sale void, although it may be good cause for setting it aside on proper application. A similar statute in New York has received a similar construction; (Groff vs. Jones, 6 Wend., 522;) an authority entitled to respect, not only from the acknowledged ability of her judges, but from the fact that her mode of conducting sales of real estate under execution conforms more nearly to ours than most of the States. In the case of Hix vs. Perry, 7 Mo. Rep., it was held, that the section of the statute above cited was designed to prevent a sheriff from selling more land than was necessary to satisfy an execution, and that it was not applicable to sales in which the whole tract was insufficient for that purpose. We are not to be understood as maintaining, that a sheriff in all cases, when the whole of a debtor’s real estate was insufficient to satisfy an execution,- would be upheld in selling it altogether. This is a matter about which it is impossible to prescribe any definite rule. Each case must be governed by its own circumstances. It is easy to state instances, at the mention of which every one would be startled, while others may be supposed which would meet with our approbation. The law has entrusted the officer with a discretion in conducting'sales of land, and confides that he will exercise that discretion in a manner most beneficial to all concerned, reserving a power in the courts to control and correct that discretion, when it has been abused, by setting aside his sales. To establish it as an inflexible rule, that all sales of distinct parcels of real estate in mass would be void, and so regarded in all proceedings, would, in many instances, seriously prejudice the debtor, and, by destroying the confidence of the public in such auctions, would cause a sacrifice of property. Who would buy an estate at a sale conducted by an officer, if, at any distance of time thereafter, it might be declared void, on the ground that he had improperly exercised a discretion with which he was entrusted by law ? Let it not be supposed that we entertain the opinion, that a sale cannot be set aside when an officer has been guilty of an abuse of discretion in making it. It would be a stain upon our jurisprudence if such a power did not exist in the courts. All that is intended to be said is, that a sale in mass by a sheriff, of distinct parcels of real estate, is not ipso facto void. None of the authorities cited by counsel maintain such a principle. The case of Rowley vs. Brown (1 Bin., 62.) was a direct application to the court to set aside a sale, on the ground, that the parcels of the property taken in execution were distinct, and should have been sold separately. The motion was sustained. The court said it was a rule to disallow, in every case, a lumping sale by the sheriff, where, from the distinctness of the items of property, he can make distinct sales. There may be exceptions, but the purchaser must bring himself within them. The case of Tiernon vs. Wilson (6 J. C. R.) was a bill in chancery, brought by the debtor against the sheriff and purchaser, to set aside a sale, where, on an execution for $10 25, the sheriff sold two lots containing, together, 440 acres, a moity of which belonged to the defendant, and was worth $800, for the sum of $13. The sale was set aside. The chancellor, in delivering his opinion, observed, it is difficult to define precisely the extent of 'property that a sheriff may sell together in mass. There must be a sound discretion exercised by the officer, and each case will furnish a rule applicable to it under all the circumstances. Tlie point was made in the ease of Jackson vs. Newton, but not determined by the court. This was an action of ejectment, brought by a purchaser under a sheriff’s sale, against a tenant, who held adversely to the debtor. There was a sale by the sheriff of specific forms and lots of land together, and it was held, that a doubt could not be entertained, but that the court would have set it aside upon a direct application. Sales in mass, of real estate, held in sevral parcels, are not to be tolerated; they are oppressive and unnecessary, and deserve animadversion. So, in the case of Nesbit vs. Dallam, (7 Gill and Johns. Rep.,) the sale was set aside, because the sheriff had sold in mass divers lots of ground situated in the same town, but separate and distinct from each other. On amotion to vacate it, the court held such a sale was to be regarded as prima facie void, and he who seeks to sustain it must show its justice and expediency. 'This was a direct application to the court to set aside the' sale. We subscribe to the principle to be extracted from these cases, that a sale in mass, by a sheriff, of distinct parcels of real estate, may be set aside on motion, or by a bill in chancery, and they, in our opinion, furnish no foundation for the contrary rule attempted to be set up, that such a sale is ipso facto void, and will be so regarded in a collateral proceeding. Were we without the experience of others to guide us to a correct conclusion on this subject, we must confess that the mildness and conservative tendency of the former rule, when contrasted with the harshness and Severity of the latter, could not but win our approbation.

Judgment reversed, and cause remanded.

Napton, Judge, did not sit in this cause.