Bird v. Sellers, 122 Mo. 23

Bird v. Sellers

122 Mo. 23 | Mo. | 1894

Biuce, J.

This is an action in ejectment for the recovery of forty acres of land in Gentry county. The ■case has been here before and is reported in 113 Mo. ■580. It is admitted that the legal title is in plaintiff nnless it has been divested by the tax deed set out in the opinion on the former appeal, under which defendant claims. This deed duly executed by the collector *29of Gentry county was recorded in said county on the-twentieth day of February, 1877. This suit was commenced on the twenty-seventh day of June, 1889. It. is agreed that the defendant went into the actual possession of the lands in May, 1885, and ever since has-remained in the actual possession thereof; that prior thereto the land was wild and unoccupied, and that neither plaintiff nor defendant nor those under whom they claim had ever had any prior actual possession.

The land was sold for delinquent taxes and the-deed executed in pursuance of a judgment of the county court under the provisions of the revenue act of 1872 (Sess. Acts, 1872, p. 80) containing, among others, the-following provisions: “Sec. 222'. Any suit or proceeding against the tax- purchaser, his heirs or assigns, for the recovery of land sold for taxes or to defeat or avoid a sale or conveyance of lands for taxes (except in cases where the taxes have been paid or the land was-not subject to taxation or has been ■ redeemed as provided by law) shall be commenced within three (3) years from the time of the recording of the tax deed and not thereafter; Provided, that, when the person claiming to own such land shall be an infant or a person of unsound mind,'then such suit may be brought at any time within two years after the removal of such disability.

“See. 223. Any person hereafter putting a tax deed on record in the proper county shall be deemed to-have set up such a title to the land described therein as-shall enable the party claiming to own the same “land, to maintain an action for the recovery of the possession thereof against the grantee in the deed or any person claiming under him whether such grantee or person is-in the'actual possession of the land or not.”

On the first trial of the case in the circuit court the-tax deed was held to be valid on its face and admitted *30in evidence; thereupon the plaintiff, in order to avoid the deed offered to prove irregularities in the assessment, levy, judgment and sale of the lands, which offer was refused, and the court rendered judgment for the defendant, from which the plaintiff appealed. The appeal was heard before division number two in which it was held that the tax deed was valid upon its face, and put this three years’ statute of limitations in motion from the time it was recorded, but that the deed was not a bar to the plaintiff’s recovery for the reason that the statute had been repealed by the revision of 1879, within three years next after the deed had been put upon record, the court, speaking through Burgess, J., saying: “Section 221, Wagner’s Statutes, 1872, page 1207, was not carried into the revision of 1879, and was repealed, except so far as it affected vested rights, if any there were. The precise question as to its repeal was passed on by this court in the case of Blodgett v. Schaffer, 94 Mo. loc. cit. 672, in which it was held that, as section 221, supra, had not been preserved, it was repealed, according to the provisions of section 3160, Revised Statutes, 1879.” And, forthe reason that section 221 had been so repealed, the court held that the deed was subject to attack for the irregularities offered to be proved, that the trial court erred in refusing the evidence of such irregularities, reversed the judgment and remanded the cause for new trial.

Section 3160 of the Revised Statutes of 1879 is as follows: “All acts of a general nature, revised and amended and re-enacted at the present session of the general assembly, so soon as such acts shall take effect, shall be taken and construed as repealing all prior laws relating to the same subject, but the provisions of the Revised Statutes, so far as they are the same as those of prior laws shall be construed as a continuation of such laws and not as new enactments.”

*31The attention of division number two seems not to have been called to the fact, on the former appeal, that the revenue law was not revised in 1879. Several amendments to the act of 1877 were made and section 184 of the act of 1872 was repealed. Sess. Acts, 1879, p. 186. But the law was not revised. Early in the session an act revising and amending that law was introduced in the senate as ‘‘Senate bill number 87,” (Senate Journal, 1879, p. 60), referred to the committee on ways and means, who, in due course, reported a .substitute therefor {Ibid. p. 362), which, having been considered and amended by the senate in committee of the whole, was thereafter in due course passed by the senate {Ibid. pp. 760-762), and sent to the house, where it was amended and passed (House Journal, 1879, pp. 1576-1584), vand returned to the senate for concurrence in the house amendments. Senate Journal, p. 953. The amendments of the house were rejected by the senate, and a conference committee appointed (Senate Journal, p. 965), to which the house responded by appointing a like committee. {Ibid. p. 966; House Journal, j5. 1611.) This conference committee never reported. But on the day before the legislature adjourned the house members of that committee submitted a protest against the delay in the shape of a report, upon which no action was taken. (House Journal, p. 1638.) Thus the legislature adjourned 'without revising the revenue laws of the state, and section 3160, supra, has no application to section 221 of the act of 3872, which remained in force after the adjournment and taking effect of the laws of this revising session of the legislature the same as before, for it goes without saying that the omission of the revising committee to carry it and other sections of that and subsequent acts into the published volume of the revised statutes, could not effect their repeal.

*32The tax deed being valid upon its face, and sections 221 and 222 of the act of 1872 being in force when the proceedings were had, and the deed pnt upon record, and remaining in force for more than three years after the deed was recorded, plaintiff’s recovery was barred by that statute. Allen v. White, 98 Mo. 55 ; Callahan v. Davis, 90 Mo. 78; Hill v. Atterbury, 88 Mo. 114; Mason v. Crowder, 85 Mo. 526. And so it would have been held in this case on the former appeal, as is evident from the opinion, but for the fact that the court was misled by the belief that the general revenue law had been revised in 1879, which as we have seen was not the fact.

The case of Blodgett v. Schaffer, 94 Mo. 652, is not in point upon the question of the repeal of section 221 of the act of 1872, by the revision of 1879. The deed in that case was a sheriff’s deed’ on sale under special execution on a judgment of the circuit court for delinquent taxes under the act of 1877, to which the three years’ limitation of the act of 1872, had no application. Bartlett v. Kauder, 97 Mo. 356. What was said, therefore in the opinion in Blodgett v. Schaffer upon the subject of the repeal of said section by section 3160, supra, was merely “obiter.”

From what has been said it is manifest that the judgment in favor of the defendant on the first trial was correct and ought to have been affirmed, and that the judgment in favor of the plaintiff on the second trial is erroneous, and ought to be reversed. Although the general rule is that whatever has been once passed upon here on appeal will in the same case upon a second appeal be treated as no longer open to dispute or further controversy, yet this is not an inexorable rule without exceptions, but has been frequently departed from, when such adjudication has been found to be wrong, not in harmony with other decisions of the *33court, and no injustice or hardship would result from overruling the former decision. Hamilton v. Marks, 63 Mo. 167; Boone v. Shackleford, 66 Mo. 493; Gwin v. Waggoner, 116 Mo. 143 and cases cited; Keith v. Keith, 97 Mo. 223; Rutledge v. Railroad, 24 S. W. Rep. 1053.

Upon these general grounds this case .should be treated as au exception to the rule, but especially so in view of the fact that the erroneous judgment was the result of a mistake as to a matter of fact, i, e., the fact of revision rather than of an erroneous conclusion of law. The judgment will be reversed and the cause remanded with directions to enter a judgment for the defendant.

All concur. Barclay, J., concurs fully in the foregoing opinion, but refers to his remarks in Spohn v. Railroad, ante, p. 22 as indicating his view as to the disposition to be made of the present case.