Boyd v. Ellis, 107 Mo. 394

Boyd v. Ellis

107 Mo. 394 | Mo. | 1891

Black, J.

This is ejectment for a lot in the city of Springfield, commenced August 19, 1885. Plaintiff appealed from a judgment for defendant.

B. W. Husted conveyed the lot to one Krudwig in 1874, and at the same time took back a mortgage to secure the purchase price of $150. Both instruments were recorded in that year, but ¡the mortgage debt has never been paid. Plaintiff ’ s title is a quitclaim deed to himself from Krudwig, dated August 15, 1885.

The defendant for title put in evidence two sheriff’s deeds, one to Milner and the other to Lisenby, both based on tax judgments rendered in 1879 ; a deed from Milner to Lisenby, dated in 1883; and a deed from *399the latter to the defendant, dated the first of July, 1885. The sheriff’s deed to Milner is based on a tax judgment against Husted, the mortgagee, only. In the view we take of this case it is unnecessary to consider the various objections made to that deed.

The facts concerning the sheriff ’ s deed to Lisenby are these: The collector of Gfreene county recovered two judgments in the circuit court on December 24,1879, one against Husted, Krudwig and Black for $10.47, for back taxes for the year 1877; and the other against Krudwig and Black for $10.35, for back taxes for the years 1874 and 1876. The sheriff sold the property under special executions issued on these judgments on May 15, 1880, and Milner became the purchaser. The deed was made to Lisenby as assignee of Milner on the twelfth of November, 1885, which was after the commencement of this suit.

It is suggested that this deed is worthless because there was no service of process upon Husted. Both judgments appear to have been rendered upon orders of publication. There is a statement in the bill of'exceptions to the effect that the publication is regular as to Krudwig and Black in the first case, and as to Husted, Krudwig and Black, in the second case. The second case appears to have been dismissed as to Husted, and there is probably some mistake in the record. Be this as it may, Krudwig, the owner of the property, was duly notified in both cases, and the judgments would not be void as to him, though void as to Husted. A judgment against two persons, one served with process, and one not served, is not void as to the person served. As to him the judgment is valid ; certainly so in a collateral proceeding like this. Lenox v. Clarke, 52 Mo. 115; Williams v. Hudson, 93 Mo. 524.

It is next sought to overthrow both judgments because of irregularities in the assessment of taxes. The assessment book for the years 1873 and 1874 does not show that the property was, assessed at all, but a *400supplemental assessment for 1873 shows that it was listed in the name of Husted. The assessment book was not verified by the affidavit of the assessor, though the supplemental assessment was verified. These are the facts as to the tax of 1874.

The property was placed on the tax book for the years 1875 and 1876 by way of a supplemental assessment in the name of B. W. Hulsted, and this supplemental assessment was verified by the assessor. For the year 1877 it was assessed to B. W. Hulsted, and again in the name of Krudwig.

A sale under a tax judgment is in no way affected by the fact that the assessment books were not verified, nor does it matter how irregular the assessments may have been. These judgments of the circuit court rendered under the tax law of 1877 conclude and cut off all inquiry as to the irregularity of the assessments. Such things are matters of defense in the tax suit, and, if not made in the suit to recover the tax, they are no longer open to inquiry. The judgment establishes the validity of the tax, just as any other judgment establishes the validity of the debt sued upon. All this we have often held, and the question is no longer an open one. Jones v. Driskill, 94 Mo. 191; Hill v. Sherwood, 96 Mo. 125; Allen v. Ray, 96 Mo. 542; State ex rel. Waters v. Hunter, 98 Mo. 386.

These two tax judgments were rendered in 1879, and the sale was made in. 1880 ; but the deed was not executed to Lisenby until November 16, 1885. The plaintiff obtained his deed from Krudwig on August 15, 1885, and commenced this suit on the eighteenth of the same month. The plaintiff had actual, as well as constructive, notice of these judgments, but it is not shown that he had actual notice of the sheriff’s sale made under them. He produces evidence to the .effect that he had no actual notice that a sale had been made. The claim, therefore, is that he is a bona fide purchaser, and his deed should prevail over the sheriff’s deed.

*401The title did not pass to the purchaser at the tax sale, until the execution of the deed to him as his assignee. But the law is well settled that a sheriff’s deed relates back to the sale as against the defendant in the execution, those in privity with him, and strangers with notice. Porter v. Mariner, 50 Mo. 364; Leach v. Koenig, 55 Mo. 451; Ford v. French, 72 Mo. 250; Lewis v. Curry, 74 Mo. 49. The sheriff’s deed, therefore, has the priority, not only because it relates back to the sale, but also because the tax lien was paramount to all other liens and claims. Nor is it any objection that the deed was made after the commencement of the suit. Porter v. Mariner, supra.

Besides this the tax judgment is special, and constitutes a lien on no other property than that upon Avhich the taxes were assessed. We do not see how it can be said the tax lien is merged into a judgment lien so as to expire in three years, as does a general judgment lien. The lien for unpaid taxes is more like a mortgage lien. This court held long ago that the lien of a mortgage was not merged in a judgment obtained in a proceeding under the statute to foreclose the mortgage. Riley's Adm'r v. McCord's Adm'r, 21 Mo. 285. Indeed, the very object of the tax judgment is to enforce the state’s lien created by the law, and not to create a new lien. Though the plaintiff had no actual knowledge of the sale, he purchased with notice of a judgment -which could have been enforced as an existing lien, had no previous sale been made. We do not see how he can claim to be a purchaser without notice in any view of the case. These tax judgments being valid as against Krudwig, the sheriff’s deed transferred his title, and that defeats the plaintiff in this action. The judgment is, therefore, affirmed.

All concur.