Bingham v. Birmingham

| Mo. | Oct 15, 1890

Sherwood, P. J.

This ejectment cause has been reargued and reconsidered, and the results of such reconsideration will now be given; and, in order that our views may be readily understood, it is necessary to refer to, or incorporate in this opinion, the sections of the city chai’ter upon which those views are based. Section 64 requires that “Tax deeds executed by the city collector shall be substantially in the following form : ” giving the prescribed form.

Section 65 is the following: “In any suit or proceeding involving or in any manner calling in question the title or right of the grantee in a tax deed, or those claiming under lien of, to or in the real property conveyed or purporting to be conveyed by such tax deed [ executed substantially as protided in the preceding section ], the person claiming title adverse to the title conveyed or purporting to be conveyed by such tax deed, shall be required to prove, in order to defeat the said tax deed, either that the taxes, interest and costs were paid before the sale; that the- real property therein described was not subject to taxation for the year or years stated in the deed ; that the real property therein described had been redeemed from the sale at the date of the deed, or the tender of the redemption money had been made to the city collector before the execution and delivery of the ■ deed, in accordance with the provisions of this act; and that such redemption was had or attempted to be had for the use and benefit of the person having the right to redemption under this act; and if any person claiming title under a tax deed [ executed substantially as provided for in the preceding section ], shall be defeated in any suit or proceeding by or against him for the recovery of the real property conveyed, or purporting to be conveyed, by such tax deed, the successful claimant shall be adjudged to pay such person claiming under such tax deed the full amount of all money paid by the purchaser at the tax sale for such real property, and ten per centum of such amount immediately added as a penalty, with twenty-four-percent. interest per annum on the whole amount thus made from the day of sale ; and also the amount of all taxes, state, county or municipal, general or special, paid by the purchaser, his heirs or assigns, after the date of the certificate of purchase and a like penalty of ten per centum added as before on the amount of each of such payments, with twenty-four-per-cent, interest per annum on the whole of such amount or amounts so made from the day of or days of payment, together with the costs of tax deed and fee for recording the same, and all costs in the case, which judgment shall be a lien upon the real property in controversy, and shall bear interest at the rate of twenty-four-per-cent, per annum, and may be enforced by execution as in other cases of judgments and decrees of such court.”

Upon the requirements of section 64, supra, it has been ruled that if a tax deed executed by the collector, in place of the words in the form contained, to-wit, “at the sale begun and publicly held,” etc., leaves out the word “publicly ” this omission is a fatal one lacking that word ; such deed is not executed “substantially” in the form prescribed by that section. Sullivan v. Donnell, 90 Mo. 278. A similar ruling, in effect, had been previously made in Hopkins v. Scott, 86 Mo. 144. The deeds in this cause, executed to the defendant, are faulty in the precise particular as was the one ruled upon in Sullivan v. Donnell, supra.

Now, what is to be the result of such defect ? It is conceded here, and so it was ruled in the lower court, that the deeds were invalid, and, therefore, formed no barrier to a recovery in ejectment; but that court also ruled that the defendant was entitled to recover the taxes he had paid, etc., according to the provisions of section 65 already quoted.

Was this ruling correct according to the provisions of that section? This is the subject of the present discussion.

It is contended that the words we have placed in brackets in section 65 are to bear the same meaning that they do in section 64 ; and that, as under that section, a deed is invalid, and will not authorize a recovery of the land, unless substantially complying with the form prescribed therein, so, also, under the provisions of section 65, the deed must substantially comply with that form or else, in the event of the defeat of a recovery of the land, the taxes paid by the purchaser cannot be recovered. Technically speaking, this position is correct ; but, are we authorized to center our entire considation on the words bracketed, leaving wholly out of view the residue of that section and other sections of the charter? Should we do this, we would certainly be acting at variance with the familiar maxim, llTJt res magis,” etc.

The central idea of the statute evidently is to allow a purchaser at tax sale who is defeated to be reimbursed by a recovery of the taxes paid with penalties and interest, in all cases when this can properly occur. Looking closely at section 65, we find that there are two classes of claimants for lands sold for taxes: First. Those who succeed notwithstanding a deed on its face valid, by proving either: (1) That the taxes had already been paid. (2) That the property was not subject to taxation. (3) That it had been redeemed.

In such case, the tax deed is overthrown and brought to naught irrespective of its formal and external validity, but the party claiming title adverse to the tax deed, of course, has to pay nothing, and this because in contem plation of law, and as a matter of fact, there were no taxes dtie on the land.

Second. The other class consists of those who have not paid their taxes, etc.; therefore, are neither able nor called upon to prove the facts required at the hands of the first class.

In short, the status of section 65 is this : Those of the first class having made the proof required, aliunde the tax deed, are hampered by no conditions to the immediate recovery of their lands; while those of the second class take their recovery subject to the reimbursement of the purchaser under the tax deed. But, if the tax deed is “executed substantially as provided for in the next preceding section,” then the second class of claimants cannot be called “ successful” and are surely at the end of their row; for they cannot attack the deed directly, it being formally sufficient, nor can they prove the existence of facts, the same being non-existent, which would authorize an attack on the deed as provided for as to the first class, so that the inevitable deduction from these premises is just this: That though that section contemplates and specifies a redemption of the land on the part of those belonging to the second class, and, therefore, denominates that class “ successful,^ yet that the terms of that section are meaningless and inoperative, since no redemption in favor of those of the second class can possibly occur where the tax deed is faultless in form. But this proves too much and effectually nullifies the statute, so far as concerns the redemption of lands sold for taxes, where a deed is executed therefor, as aforesaid.

But if you sti'ike out the words bracketed in the second paragraph of section 65, as having been improvidently inserted, you then have a section readily understood, and operative throughout. We shall treat the section in this way, and thereby harmonize its entire provisions, something otherwise impossible to be done. In pursuing this course we do but follow well approved precedents, and allow the reason of the law to prevail over its letter; “for the letter killeth, but the spirit maketh alive.” 2 Cor. 3: 6.

The presumption is that the legislature never intended to enact an absurd law incapable of being intelligibly enforced. Railroad v. Brick Co., 85 Mo., loc. cit. 329 ; State v. Bulling, 100 Mo., loc. cit. 93; Ex parte Marmaduke, 91 Mo., loc. cit. 254 ; State v. Hayes, 81 Mo., loc. cit. 585.

This obstacle being removed, we are free to follow the rule laid down in the section in question ; and it is the same as that heretofore announced in White v. Shell, 84 Mo. 569.

These remarks result in affirming the judgment, and it is so ordered.

All concur.