90 Mo. 78 | Mo. | 1886
The plaintiff commenced this action of
The plaintiff offered the following evidence:
1. Certified plat of the original entry of the land, showing that it was entered at a United States land office by Alonzo Thompson, on the tenth of February, 1857.
2. Quit-claim deed from Thompson to Henry Turpin, dated April 18, 1857.
3. Patent from United States to Thompson, dated December 15, 1858.
4. Deed from Turpin to Ford and others, made in 1858.
5. Deed from a part of the last named grantees to plaintiff conveying f|jj- of the land. •
6. Oral evidence which will be noticed further on.
The defendants put in evidence a tax deed to Talbott & Morehouse, dated January 24, 1879, which recites a tax judgment against these two parcels of land, but it only purports to convey one of them ; also, a quit-clajm deed from Morehouse to Talbott containing a like description, and a deed from the executrix of the estate of Talbott to the defendants to the land in dispute, dated in October, 1880. The land had been in the possession of Talbott several years before the date of the tax deed, but under what title does not appear.
This section is to be construed with the preceding one, which provides that any suit against the tax purchaser for the recovery of the lands sold for taxes shall be commenced within three years from the time of recording the tax deed. The purpose of the section in question is to give to the holder of the tax title, when the property is vacant, or not in the actual possession of any one, such a constructive possession that he may be sued by the adverse claimant. But how could there be a constructive possession as against an actual possession % If the tax title claimant, out of possession, ■ be sued, and there be an actual occupant, not made a defendant, the judgment could not affect the possession or right of possession of the occupant. The writ of restitution would as to him avail nothing and he could not be disturbed by it.
It may be added, we hold that a tax deed void on its ' face will not set in motion the three-year limitation, though the p urchaser takes and holds possession under it. Mason v. Crowder, 85 Mo. 532. It is not claimed in this court that the tax deed is of any validity, though such a claim must have been made in the lower court. For a failure to sue the proper parties as the evidence now stands, the cause is reversed and it will be remanded, to the end that plaintiff can make the proper proof, or he can dismiss and commence his suit against the person in possession.
Reversed and remanded.