215 Mo. 558 | Mo. | 1908
This suit is aimed to come under section 650, Revised Statutes 1899', to quiet title to a quarter section of land in Texas county. The petition alleges that it is wild land in the possession of no one, that plaintiff is the owner in fee, that defendant claims title adverse to plaintiff, that both plaintiff and defendant claim from a common source, but that defendant’s title comes through a sale for taxes which was illegal and void. The prayer is for a decree adjusting the title. The defendant in his answer does not assert title in himself but only denies that plaintiff has title. But the cause was tried by both parties as if by the pleadings each was asserting a title in con
On the trial the plaintiff as proof of his title introduced a warranty deed from Lamar dated June 3, 1899, to himself, and then he undertook to prove what the defendant’s title was and to do so he introduced a sheriff’s deed to one Cameron of date May 21, 1901, purporting to be the result of a sale under special execution on a judgment of the circuit court rendered November 21, 1900, for delinquent taxes for -the year 1898, in a cause wherein the county collector was plaintiff and this plaintiff was defendant; then ■followed mesne conveyances from Cameron to the defendant. The plaintiff introduced evidence, over the defendant’s objection, tending to show that the taxes on this land for the year 1898 were paid before the suit in which the judgment was rendered was begun, and he also introduced the judgment under which the sheriff’s sale was made, which judgment did not state the year or years for which the taxes that were adjudged delinquent were found to be due. With that the plaintiff rested. Then the defendant, to show the source of the plaintiff’s title, introduced a deed dated November 15, 1898, from the sheriff under special execution on a judgment in a tax suit against one Long and others conveying the land to Lamar, the plaintiff’s grantor. There was no question raised as to the regularity of that proceeding, sale and deed. In defense of his own title defendant introduced evidence tending to show that the petition in the case in which the judgment under which he claims was rendered was lost and could not be found, but no effort was made to prove its contents, but defendant also introduced the order of publication against the plaintiff here, the defendant in that suit, as a non-resident, in which publication it was stated that the suit was
Defendant’s main proposition is that he claims under the judgment in the tax suit against the plaintiff, that that judgment was rendered by a court of competent jurisdiction, and that it is not subject to a collateral attack. The proposition as so stated is a correct declaration of law and is sustained by the cases cited in appellant’s brief. [Evarts v. Lumber & Mining Co., 193 Mo. 433; Johnson v. Stebbins-Thompson Realty Co., 167 Mo. 325; Jones v. Driskill, 94 Mo. 190.] But a judgment to be safe from, a collateral attack must on its face or on the whole record appear to be lawful. Wien a court is proceeding to render a judgment in conformity with a statute authorizing a particular proceeding which was unknown to the common law, though it be a court of general jurisdiction and though the court be proceeding in accordance with the course of the common law, as far as it is applicable to' the statutory proceeding, yet the judgment must conform to- the requirements of the statute under the authority of which alone it is ren
It would perhaps not be contended in the face of this statute that a petition in such case which failed to state the year for which the taxes are claimed to be due would state a cause of action. In Bland v. Windsor, 187 Mo. 108, the court said that the taxes for each year was a separate and distinct cause of action and that a petition that failed to state the year the taxes sued for were claimed to he due would be fatally defective. The General Assembly deemed it essential to require that fact to be shown not only in the petition but also in the taxhill filed therewith, so that the person whose land was threatened would know exactly what was the demand of the tax collector. And, to give further emphasis to this as an essential point, the lawmaker
In such case the court could not even have allowed the petition to be amended, because a judgment by default on proof of publication only must rest for its
As to the recital in the sheriff’s deed it is of no value in this particular. The statute, section 9305, makes the sheriff’s deed “prima-facie evidence of title and that the matters and things therein stated are true,” but it cannot.be made to contradict the record or. furnish data with which to supply a material defect in the record; in any instance it is only primafacie evidence and is subordinate to the record. Its recitals are made prima-facie evidence of the facts recited because it is presumed that the record facts recited in the deed were copied from record and the other- facts recited were the sheriff’s: own acts in executing the fieri facias, but when the deed recites a fact as appearing on the-record, and reference to the record does not sustain the recital, the prima-facie evidence- of the-deed is overcome. The sheriff cannot supplement or amend the court’s record. Appellant in his brief cites: cases to show that an essential omission in a judgment
It is true as contended by appellant that a judgment of the circuit court in a tax suit cannot be set aside in a collateral attack by showing that in point of fact the taxes for the year specified in the judgment had been paid before the suit was begun.
Therefore the testimony introduced showing- that the taxes for the year 1898 .were paid was incompetent, but that incompetent evidence is not taken into account by us. We judge this tax judgment on its own face and on its own record and pronounce it void. The judgment of the trial court was for the right party and it is affirmed.
