Holladay-Klotz Land & Lumber Co v. T. J. Moss Tie Co. , 87 Mo. App. 167 ( 1901 )

GOODE, J.

No error was committed in admitting the deed of John Johnson, sheriff of Wayne county, purporting to convey the interests of Louis Rosenbaum and Joseph Walter to H. N. Holladay. Unless there are alterations of a suspicious character on the face of a document, it is competent as evidence on proof of its execution without explanation by the party offering it. It is only where apparent changes by erasures, interlineations or other modes excite distrust that the party is called on to show they are innocent. Stillwell v. Patton, 108 Mo. 352; Paramore v. Lindsey, 63 Mo. 63. Otherwise, the presumption is that the alterations were made contemporaneously with the execution of the instrument or before its delivery. McCormick v. Fitzmorris, 39 Mo. 24; Paramore v. Lindsey, supra; Burnett v. McCluey, 78 Mo. 676; Holton v. Kemp, 81 Mo. 661; Stillwell v. Patton, supra. Whether or not there are peculiar appearances on the face of the instrument sufficient to arouse distrust and require explanatory proof by the party offering it, is, in the first place, a question for the court to determine by an inspection. Paramore v. Lindsey; Holt v. Kemp; Stillwell v. Patton, supra. If in the opinion of the court there are circumstances to excite suspicion, no presumption obtains as to the time the alteration was made, but it is then for the jury to find on all the facts, when, by whom and with what intent, it was done. Matthews v. Coalter, 9 Mo. 696; McCormick v. Fitzmorris; Paramore v. Lindsey; Holton v. Kemp; Stilwell v. Patton, supra.

The sheriff’s deed in this case has been submitted to us for our inspection, and on examination of it we are all clearly of the opinion that there are no such visible indications of it having been wrongly tampered with that the trial court should have demanded preliminary testimony before admitting it in evidence. There is a slight difference in the shading of the ink in the name of Joseph Walter from most but not all the other written portions, and only the name of Louis Rosenbaum is on the back; but such trifles must not be permitted to discredit an instrument, because they too easily and- often occur unintentionally. Besides, the sheriff’s clerk who prepared the deed testified that he wrote all parts of it, wrote them at the same time and before its execution. This assignment of error is therefore ruled against the appellant.

Practically all the evidence offered by the defendant was admitted, much of it against the respondent’s objections. We, shall therefore proceed to consider the instructions on which the case was submitted and those which were requested by the appellant but refused, first premising that the defense set up in the -answer that the judgment was discharged by payment before the sale occurred, entirely failed. The proof is clear that all the money was not remitted to the collector by Walter until some time after the land had been sold, and while the letters written by the latter are not altogether convincing that he was acting in good faith, the sale could obviously not be held void on collateral attack for that reason.

This leaves two further defenses to be dealt with: the alleged fraudulent alteration of the sheriff’s deed and the contention that Walter was not a party to the suit for taxes nor the judgment and execution therein. These two grounds of defense are manifestly independent of each other, but they were not so treated by the instructions. ' The second one given at the request of the plaintiff, tells the jury in so many words that the sheriff’s deed purported on its face to convey the interest of Louis Rosenbaum and Joseph Walter, and that they are not authorized to find for the defendant unless satisfied that Walter’s name was inserted in the deed after the date of its acknowledgment for the fraudulent purpose of making it purport to convey his interest in the land. This instruction would be good if the only defense pleaded was a fraudulent alteration of the instrument, but it leaves wholly out of view the other defense set up in the answer, namely that he was not a party to the proceedings in the tax suit. No interest owned by him could be acquired by Holladay, the purchaser at the sheriff’s sale, unless he was a defendant in the suit with the judgment and execution against him. It has been repeatedly decided that a tax sale conveys only the interest of the defendant in the action. Watt v. Donnell, 80 Mo. 196; Boatmens Savings Bank v. Grewe, 84 Mo. 478; Evans v. Robberson, 92 Mo. 192; Powel v. Greenstreet, 95 Mo. 13; Troyer v. Wood, 96 Mo. 478; Chamberlain v. Blodgett, 96 Mo. 484; Allen v. Ray, 96 Mo. 547; Moore v. Woodruff, 146 Mo. 597. We do ¡not speak of cases in which the true owner of the land is not shown to be such by the record, and the collector proceeds against the apparent owner. A different rule then prevails in the absence of notice or circumstances to raise an inquiry that the apparent owner is not the real owner. Vance v. Corrigan, 78 Mo. 94.

If Walter was shown by the deed records to be the owner when the collector began his action, and he was not made a party nor judgment rendered against him, his interest was unaffected by the sale and in that event it was immaterial when, by whom and for what purpose, the deed was made to apparently pass his title: it was, that far, a nullity.

The first instruction given for the plaintiff was also erroneous. As a general proposition the recital of the deed that Walter as well as Rosenbaum was a defendant in the tax suit, could not be contradicted by parol testimony. Tbe best evidence would have to be forthcoming — the record and files in the case. But as they had been all destroyed it was perfectly competent to introduce secondary evidence of their contents. Foulk v. Colburn, 48 Mo. 225; 1 Greenleaf’s Ev. (61 Ed.), sec. 510. Nor would thus proving what the judgment actually was, be in any sense an impeachment of it as the respondent argues. Nothing but the recital would be contradicted which the statutes by their language make only prima facie evidence of the truth of what it says.

It may be remarked here that the sheriff’s letter to Walter, dated March 2, 1892, in which he stated that the suit for taxes was against Eosenbaum, was glaringly inadmissible against the plaintiff which had nothing to do with it so far as the record discloses.

The first of the appellant’s instructions told the jury that to find the issues for the plaintiff they must first find Walter was a party defendant in the action for back taxes. The rule is that instructions must be taken together and harmonized when possible, and that omissions in those given for one side will be held supplied if contained in those given for-the other. Gordon v. Burris, 153 Mo. 223. If there is no reasonable ground to apprehend that the jury were misled by an error in one which is corrected by another, the judgment will not be reversed. Fischer v. Heitzberg Co., 77 Mo. App. 108; Clark v. M., K. & T. Ry. Co. decided at the present term of this court. But by allowing this rule the widest application rationally possible, the second instruction given in respondent’s behalf can hardly, we think, be held cured; at all events, as the ease must be retried, it should be differently framed. It’s vice consisted in more than merely omitting to require a certain finding in plaintiff’s favor necessary to a recovery: it denied the jury the authority to return a verdict for the defendant unless they found one fact: that there was a fraudulent insertion of Walter’s name after its execution, and that, too, without purporting to hypothecate only one branch of the case, thus shutting off absolutely the other branch, the failure to make him a party to the tax-suit. When a cause is submitted on conflicting charges, the jury must necessarily decide between them and may obey the wrong instead of the right direction. The instruction requested by the respondent was wrong in this instance and so palpably apt to mislead the triers of the fact by making them lose sight of one ground of defense that it is impossible to hold the error was harmless. Flynn v. Union Bridge Co., 42 Mo. App. 529; Voegeli v. Pickel Marble & Granite Co., 49 Mo. App. 643; Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo. 587.

No reversible error was committed in refusing the two instructions asked by appellant and not given. The first one was faulty because, it was not necessarily fatal to the deed that Walter’s name was inserted after execution if it was done by the sheriff or by his direction with no bad motive. Otis v. Browning, 59 Mo. App. 326. The second was fully covered by one given.

The court rightly declined to direct a verdict for the defendant. The evidence on the several issues was conflicting and was to be weighed by the jury. We by no means regard the evidence adduced, to prove the notice of sale did not contain Walter’s name, as sufficient to justify a peremptory instruction for the defendant. Mitchell v. Nodaway County, 80 Mo. 257; Harness v. Cravens, 126 Mo. 233; Curd v. Lackland, 49 Mo. 451; James v. Dickson, 21 Mo. 538.

The instruction on the measure of damages asked by appellant, -and not therefore assignable as error, was not well' drawn. The measure is the Reasonable value of the ties in the tree at the time of the alleged conversion with six per cent interest thereafter. Spencer v. Vance, 57 Mo. 427; Thomas Mfg. Co. v. Huff, 61 Mo. App. 124.

Eor the errors noted in the instructions given the judgment is reversed and the cause remanded.

All concur.