Allen v. White

98 Mo. 55 | Mo. | 1888

Brace, J.

— This is an action in ejectment to recover possession of the northeast quarter of the northeast quarter of section 18, township 66, range 29, in Harrison county. The defendant obtained judgment and the plaintiff appeals.

I. The petition was in the usual form. The answer was a general denial, with a special plea of the three-year statute of limitations under section 221, 2 Wag. Stat. 1872, p. 1207. It is conceded that the title is in the plaintiff, unless it has been divested by a tax deed to Joseph P. Bryant put in evidence by the defendant and under which he claims. To the introduction of this deed in evidence, the plaintiff objected, and its admission by the court he assigns as error, fop the reason that it is not in the form prescribed by law, in that it contains ten different tracts of land in ten different sections, and all set out in tabulated and abbreviated form. The form prescribed for tax deeds at the time this one was made is contained in section 217, 2 Wag. Stat. 1S72, p. 1205. The deed is too long to be inserted in this opinion, but upon a careful comparison of it with that form, not a single recital op statement is found to have been omitted, consequently the authorities cited by plaintiff’s counsel in support of this objection are not in point, for this deed is not defective in any of the particulars to which the deeds in the cases cited were subject, nor is it obnoxious to objection for any similar defect. The form as it appears in the statute is prepared for a single tract, but it does not follow that more than one tract cannot be included in the same deed. On the contrary, the preceding section (216) of the same act expressly authorizes the collector to “include as many tracts or lots” in one deed of conveyance as may have been purchased by one person, at the same sale, for the same year’s tax, as was the case here, and every abbreviation used in the deed is expressly authorized by statute (sec. 240, supra, p. 1212), while the tabulated form used in the deed simply adds to its clearness and conciseness. When a form is prescribed by statute it must be substantially followed. It cannot and need not always be literally followed, as the circumstances of the cases to which it is applicable are sometimes necessarily somewhat variant, and no form can be prescribed which in every case can be perfected by simply filling the blanks. The deed being substantially in the form prescribed by the statute, and complying with all its essential requirements, was “prima facie evidence that each and every act and thing required to be done by the provisions of the act had been complied with” (sec. 219, p. 12G6, supra), and the court committed no error in admitting it in evidence.

II. The deed was dated and acknowledged on the fifth and filed for record and recorded on the seventh of December, 1877. The land was sold by the collector on the fourth of October, 1875, under a judgment of the county court rendered at the July term, 1875, for the taxes of 1874. In August, 1881, the defendant purchased and received a deed for the land from Bryant, which was recorded on the twenty-seventh of August, 1881, and in April, 1882, he went into actual possession of the premises. Prior to the last date the land was wild prairie land, unoccupied and unimproved. This suit was instituted on the twenty-fifth of August, 1884. The plaintiff, nor any other person except the defendant, having ever been in the actual possession of the premises since the tax deed was put to record on the seventh of December, 1877, the defendant and his grantor have been in the constructive possession of the premises since that date and continuously ever since subject to plaintiff ’s action of ejectment. Sec. 222, p. 1297, supra; Callahan v. Davis, 90 Mo. 78. The present action not having been commenced for more than seven years after the deed was put to record, is barred by the terms of the statute, unless plaintiff brings himself within the exceptions therein contained. Sec. 221, supra; Hill v. Atterberry, 88 Mo. 114. That section excepts from the limitations of three years cases “where the taxes have been paid or the land was not subject to taxation or has been redeemed as provided by law,” and reserves to the person claiming to own the land, if he be an infant or of unsound mind, the right to bring suit at any time within two years after the removal of such disability. The plaintiff in rebuttal did not offer any evidence tending to bring himself within any of these exceptions or impeaching in any way the validity of the proceedings for the taxes of 1874, but offered in evidence the judgment book of the county court and the special execution record and report of tax sales, showing that the land was again sold on the .second of October, 1876, for the taxes of 1875, and was again purchased by Bryant and a certificate of purchase therefor of that date granted him. To the introduction of this evidence the defendant objected, but his objection was overruled and the evidence admitted.' The case was tried before the eourt without a jury, and the plaintiff on this evidence asked the court to declare the law as follows:—

“ 1. If the court, sitting as a jury, believe from the evidence that one Joseph F. Bryant bought the lands in controversy at tax sale in October, 1875, for the taxes of 1874, and again permitted the lands to be returned delinquent for the taxes of 1875, and sold for such taxes at the tax sale in October, 1876, then said Bryant was not entitled to a deed for said tax sale made in 1875, in 1877, and he could not claim or hold said lands under said tax deed for taxes of 1874, as said tax deed was improperly given to said Bryant.”

The court refused to so instruct, the plaintiff excepted, and the court found for the defendant. So its action was equivalent to a rejection of the testimony in the first place, and the error assigned stands as if the court had excluded the testimony when offered, and the plaintiff had saved his exception to such ruling.

We do not think, however, that the court committed error in excluding this testimony ; it tended in no way to bring plaintiff within any of the exceptions provided for in the statute, or to impair the validity of the deed to Bryant, under which the defendant claimed, and conceding that section 210, page 1203, supra, is applicable to a case of this kind, the only right that plaintiff acquired by Bryant’s action in suffering the land to be again sold for taxes before the expiration of two years from the date of his first purchase, was to extend plaintiff’s right to redeem at any time within two years from the date of that purchase to the right to redeem at any time within two years from the date of Bryant’s last purchase, by paying the amount he paid on his first purchase with ten per cent, interest, and double the amount paid by him on his last purchase. The two years from the date of the second purchase expired on the second of October, 1878, and the plaintiff never redeemed, or offered to redeem. Even if Bryant’s deed was prematurely delivered to him, he was entitled to it on that day. All taxes having been paid, and all the time allowed to the plaintiff to redeem having expired, without even an offer to redeem, and being of record, the statute would then begin to run in favor of the deed even if it did not before, and it continued to run in favor of thé defendant and his grantor for more than six years before this suit was brought. We find no error in the ruling of the court on this evidence.

III. The law under which the tax proceedings were had in this case, approved March 30, 1872, was amended and some of its sections repealed by the revenue acts of April, 1877, but section 221, page 1207, supra, was neither amended nor repealed by those acts, but was in force when these proceedings were had, consequently the court committed no error in refusing plaintiff’s second instruction. The ruling of the court in refusing the third is sustained by what has already been said.

We find no reversible error in the record, and the judgment is affirmed.

All concur.