200 Mo. 688 | Mo. | 1906
This cause is now pending in this court upon appéal from a judgment of the circuit court of Stoddard county in favor of the plaintiff and against the defendant. The judgment is predicated upon an action instituted by plaintiff under the provisions of section 650, Revised Statutes 1899, to ascertain and define the title as between the plaintiff and the defendant to the northeast quarter of section 25, township' 24, range 12 east, situate in Stoddard county, Missouri. The land in controversy is wild unimproved timber land, and the legal title is alone before the court for determination.
The record discloses that there is no dispute as to the common source of title, both parties claim through execution sales enforcing tax judgments against David W. McElroy, who was the owner of the land. This history and origin of the deeds through which both respondent and appellants claim title to this land may thus be briefly stated:
On September 10, 1887, a judgment was rendered against David W. McElroy, owner of the land now in controversy, for the taxes against said land for the years 1879 to 1885 inclusive, and special execution was issued upon such judgment November 1, 1887, returnable to the March term, 1888. The land was levied upon December 16, 1887, and sold on March 6, 1888. E. M. Weber and Ligón Jones became the purchasers of the
The taxes on this land were not paid for the years 1887 and 1888, and David McElroy still being the record owner of said land, the collector, for the purpose of enforcing the State’s lien for such taxes of 1887 and 1888, brought a suit against said McElroy, returnable to the March term, 1891, of the circuit court of Stoddard county, Missouri, and a judgment was rendered on March 1, 1891, for the taxes heretofore stated, for the years 1887 and 1888, and execution was issued upon such judgment for the purpose of enforcing the lien therein declared, returnable to the September term, 1891, and said land was sold as the property of David W. McElroy on September 17, 1891. At such sale James W. Buchanan purchased the land; the sheriff accordingly on September 17, 1891, executed a deed conveying to him the land sold. This deed was acknowledged in open court on the 23d day of September, 1891, and was placed on record September 26, 1891, in book 2, page 4, of the land records of Stoddard county. On
At the close of the evidence the court gave the following declaration of law at the request of the defendant:
‘ ‘ The court declares the law to be that if the court find and believe from the evidence that the defendant, Geo. Bippus, holds and claims title through and by virtue of a sale of the land in controversy under a proceeding to foreclose and enforce the lien for unpaid taxes assessed against said land against the record owner thereof, then the court will find that defendant’s claim and title relates at least to the date of judgment in that behalf and constitutes a superior and paramount title. If the court finds that plaintiff’s title has emanated from proceedings subsequent thereto, and said proceedings for delinquent taxes being manifested by public record, then the court will find that plaintiff, and all others taking title subsequent to said judgment, took with notice, and the court will find for the defendant, Bippus, and enter a decree accordingly. ’ ’
The abstract of record filed by appellants and now before us discloses that after the giving of such instruction the court in the first instance found for the defendants; subsequently this finding was changed by the court and a finding was made for the plaintiff and a decree and judgment entered accordingly. A timely
OPINION.
It is apparent from tbe record in tbis cause that there is but one question to be determined, and that is which of these parties to tbis proceeding acquired title to tbe land in controversy under the tax judgment as heretofore indicated in the statement of this cause. Tbe two conflicting contentions of appellants and respondent in tbis proceeding may thus be briefly stated:
On tbe part of tbe appellants it is contended that the deed executed by J. R. Barham, sheriff of Stoddard county, Missouri, as successor to D. W. Sanford, on September 16, 1891, predicated upon a judgment for taxes against David W. McElroy on tbe 10th day of September, 1887, and a sale in pursuance of said judgment made on tbe 6th day of March, 1888, conveyed tbe title to tbe land in controversy to E. M. Weber and Ligón Jones, which was by them subsequently conveyed to tbe appellants in tbis cause.
On tbe part of tbe respondent it is insisted that the taxes of 1887 and 1888 not having been paid, constituted a lien upon the land in controversy; that tbe collector instituted a suit to enforce tbe lien o,f tbe State, and that be bad the right to maintain a proceeding to enforce such lien for such taxes. That at tbe date of tbe commencement of tbe suit tbe land in controversy was assessed in tbe name of David W. McElroy and that be was at tbe time of tbe institution of tbe suit tbe record owner and the only proper party against whom such proceeding could be maintained for tbe enforcement of tbe State’s lien for tbe taxes of 1887 and 1888. It is also insisted that tbe judgment rend
The legal propositions disclosed by the record before us necessitates a brief review of the law applicable to proceedings by the State to enforce its lien for taxes against the land upon which such taxes have been assessed. A proceeding to enforce the lien of the State for taxes is not one strictly in rem, but is fully recognized by reason of the nature and character of the proceeding, and the judgment authorized to be entered, as one in the nature of an action in rem. As was said in the case of Hilton v. Smith, 134 Mo. l. c. 508: “The statute requires the suit to be brought against the owner of the land charged with the lien of the State for taxes. For this reason the proceedings are not strictly in rem; but after jurisdiction of the subject-matter is acquired the proceedings are against the property. It is said in Allen v. McCabe, 93 Mo. 144: ‘It must be remembered
It is no longer an open question in this State that the officers in suits wherein it is sought to enforce the lien of the State for taxes, in the absence of notice to the contrary, may look to the record of deeds to see who the owner of the property is, and a purchaser under the judgment in such suits against the record owner, in the absence of notice that such person against whom the suit was brought was not the true owner, would be protected in his purchase against the holder of an unrecorded deed from such apparent record owner. [Vance v. Corrigan, 78 Mo. 94; Payne v. Lott, 90 Mo. 676; Evans v. Robberson, 92 Mo. 192; Allen v. Ray, 96 Mo. 547; Nolan v. Taylor, 131 Mo. l. c. 228; Hilton v. Smith, 134 Mo. 499.]
It is insisted by appellant that the tax proceeding instituted by the collector for the collection of the taxes of 1887 and 1888 should have been brought against Weber and Jones, the purchasers at the sale under the judgment of 1887; in other words, that Weber and Jones were the owners of the property and therefore a judgment against David W. 'McElroy and a sale in pursuance of such judgment was inoperative to convey any title to the real estate in controversy. We are unable to give our assent to this insistence. It is the settled law of this State and has been uniformly held by'this court that a purchaser at an execution sale acquires no title to real estate until the deed for it is executed by the proper officer. [Land & Lumber Co. v. Franks, 156 Mo. l. c. 689; Boyd v. Ellis, 107 Mo. 894, and eases cited.] So far as the record in this case discloses, at the time of the institution of the suit by the collector against David W. McElroy to enforce the lien of the State for the taxes of 1887 and 1888, the land was assessed to David W. McElroy, and he was the record owner, and there was an entire absence of any indication in the land records of the county, either at the time of the commencement of the suit, or at the time
With the well-recognized rule that when the officer executes his deed in pursuance of a sale, so far as the defendant in the execution and his privies are concerned, and strangers purchasing with notice, the deed relates back to the date of the sale, and vests the title in the execution purchaser from that time, we are entirely satisfied; but as applicable to this case, in order to entitle the defendants to invoke the doctrine of relation it was essential at least that they have an instrument upon which the doctrine of relation could operate conveying the title to the property at the commencement of the suit, as well as at the time of the rendition of the judgment and sale of the property thereunder. It was the duty of the collector to enforce the lien for the taxes of 1887 and 1888 against this property, and he could not, under the disclosures of the record in this cause, maintain the suit against Weber and Jones, for it is manifest that at that time they had acquired no title to the property in controversy, for the reason that no deed had been executed to them in pursuance of their purchase. If Weber and Jones were claiming to be the owners of this property presumptively they knew that the taxes of 1887 and 1888 had not been paid and constituted a lien upon such property, and we fully concur in the views as expressed by Macfaelane, J., in the case of Hilton v. Smith, that “persons who have neglected to make known their ownership, by record, or otherwise, will be presumed to have notice of the pendency of the suit and will be bound by the judgment therein. The suit proceeds against the property, and the collector is not required to add and bring in new parties as they make their interests known. One holding an unrecorded instrument affecting the title to the land should not be allowed to defeat the objects of the law and obstruct the collection of the revenue by filing
Upon the propositions involved in this case our attention is directed to the cases of Boyd v. Ellis, 107 Mo. 394, and Fleckenstein v. Baxter, 114 Mo. 493, and it is earnestly insisted by counsel for appellants that the rules of law announced in those cases are decisive of the case at bar. We are unable to agree with counsel for appellants as to the application of the propositions decided in those cases to the question disclosed by the record in the case at bar. This insistence necessitates a brief review of those cases. In Boyd v. Ellis, the collector brought two suits to enforce the State’s lien for taxes and in 1879' judgment was rendered in such suits and the sale enforcing* the lien of the State in such suits was made in 1880, but the deed was not executed to the purchaser or the assignee of the purchaser until November 16, 1885. The plaintiff in that action, subsequent to the rendition of the tax judg;ments and the sale made in pursuance of them, obtained a deed from the owner of the property on August 15, 1885, and commenced his suit in ejectment against the defendant, who was in possession of the land under the tax judgment, on the 18th of August, 1885. In that'case it was held, and properly so, that the sheriff’s deed was entitled to priority and conveyed the title to the premises. Black, J., in speaking for the court upon the disclosures of the record, thus stated the law: The 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
In Fleckenstein v. Baxter, Judge Black again thus stated the proposition under consideration and the la'W' applicable to it. He said: “The question made on this record is, whether the plaintiff purchased with notice of the sheriff’s deed. The taxes were assessed against the land while Charles Schloegel was the owner, and he continued to be the owner when the tax suit was commenced and the special judgment obtained against him. The sheriff’s deed based on that judgment bears date March 22, 1882, but was not recorded until two months after the plaintiff received his deed from Schloegel. The unpaid taxes constituted a lien on the land, and this lien was prior and paramount to all other liens. It was created and disclosed by public records, and the plaintiff purchased with notice of it and of the judgment enforcing it. This tax lien was not merged into a judgment lien so as to expire in three years as in case of a general judgment. [Boyd v. Ellis, 107 Mo. 398.] The plaintiff purchased with notice of the tax lien and the special judgment enforcing it, and he was bound to go further and see whether that judgment had been satisfied, and this inquiry would have disclosed the execution sale. He, therefore, took with notice of that sale and is bound thereby. As between him and those holding under the sheriff’s deed, he had notice of the sheriff’s sale. Had the sheriff failed to execute the deed until afte'r the plaintiff purchased, still the deed when executed would relate back at least to the date of the judgment, and thus cut out plaintiff. [Boyd v. Ellis, supra, and cases cited.] ”
It is sufficient to say of those cases that they properly and. clearly apply the law to the questions dis
The lien of the State for the taxes of 1887 and 1888 was permitted to accrue, and unrecorded claims of the nature and character of those held by Weber and Jones existing at the time of the institution of the suit for the enforcement of such lien, as well as at the time of the rendition of judgment and sale of the property in controversy, should not be permitted to defeat the objects of the law and delay or obstruct the collection of the revenue by undertaking to infuse into such claim the life of a title to the land and filing it of record long subsequent to the institution of a suit to enforce the State’s lien and a judgment and sale in pursuance thereof.
The conclusions reached in this case, as herein indicated, are in no way in conflict, with the cases of Wood v. Smith, 193 Mo. 484; Blevins v. Smith, 104 Mo. 583, nor with any other cases decided by this court in which the principles applicable to the propositions involved in this proceeding were discussed. In Wood v. Smith, supra, it was held that the tax judgment was not binding upon the defendant, and that while,the deed records of the recorder’s office disclosed that the defendant was the record owner, yet the other public records, the tax books, to which the officers, whose duty it was to enforce the lien of the State, had access, disclosed that the defendant against whom the tax proceeding was instituted, was not the true owner, therefore, the officers having notice of who was the true owner, it was their duty to make him a party to the
The decree and judgment of the trial court was manifestly correct and for the right party and should be affirmed, and it is so ordered.