143 Mo. 483 | Mo. | 1898
This is an action of ejectment. Defendant disclaimed any interest in one of the tracts of land described in the petition and there is no controversy concerning that tract in this court. The plaintiffs, who Recovered below, introduced evidence showing a chain of title from the United States to them. The case is here upon a writ of error sued out by defendant. Several defenses are relied upon to defeat the action. These can be best considered in the order in which they are presented in the pleadings.
I. The answer first sets up that defendant purchased the land at a tax sale on the fifth of October, 1874, and recorded the collector’s deed to him on the twenty-second of February, 1877. This sale was made under the revenue law of 1872. Section 221 of said
Defendant offered his tax deed, which bears date on the twenty-second of February, 1877. The recorder’s certificate shows that it was filed with him on the twentieth of February in said year. There is evidently a clerical error in writing one of these dates. The deed recites that judgment was rendered at the “July term” of the county court of Lincoln county against this land for the taxes of 1872 and 1873. The year in which the judgment was rendered, is not given in the deed. This makes it void upon its face. The statute prescribes the form of the deed, and the recitals to be contained in it. This form provides for a statement in the deed of the year in which the judgment was entered. (2 Wag. Stat. 1872, p. 1205, sec. 217.) This is a material matter. The validity of the proceedings may depend upon the date of the judgment. At any rate the statute requires it to be given. A substantial compliance with this requirement is essential to the validity of the deed.
It is argued that, although the deed omits to state the year of the rendition of the judgment, it may reasonably be inferred from all the recitals taken together, that it was at the July term, 1874. It is not clear that this inference would necessarily be drawn from the statements in the deed. Itmay be that there is enough in the deed to authorize the conclusion that the judgment should have been entered at the July term, 1874, but it does not follow that this was done. The law, however, requires that “the recitals' ’ in the tax deed should be substantially as set forth in the statutory form.
It is said that plaintiffs made no specific objection to the introduction of the deed in evidence. It is further urged that in the replication they gave certain reasons for their contention that the tax sale was invalid, and the omission above mentioned in the deed was not one of them. It is argued that plaintiffs, therefore, waived this defect. Defendant attempted to bring himself within the statutory limitation prescribed by the revenue law of 1872. He offered this deed in part, at least, for that purpose. It was admitted in evidence. It was for the court then to determine the legal effect of the instrument, and whether it was sufficient upon its face, as a matter of law, to set in motion said statute of limitations of three years. The deed being void on account of the omission of necessary recitals, defendant wholly failed to come within the protection of the statute. Callahan v. Davis, 90 Mo. 78; Duff v. Neilson, 90 Mo. 93.
II. Adverse possession of the land by defendant for more than ten years before the institution of this suit is relied upon. All the declarations of law asked by him upon that subject were given. There is nothing to show that the court proceeded upon an improper theory as to the law governing the case. It is said that the testimony clearly and plainly established such adverse possession and that the judgment is not supported by the evidence. We can not concur in that view. The burden of proof upon this issue was upon the defendant. The weight and credit to be given to
III. Complaint is made of the action of the court in striking out part of the answer. The substance of the averments stricken out is that defendant paid taxes and made valuable improvements upon the land in ignorance of any claim by plaintiffs to the same; that plaintiffs, knowing of such improvements and of the payment of the taxes by defendant, failed to inform him of any right which they had to the land while it was being so improved by him. It is then stated that defendant was induced to make such improvements under the belief that Ms title was good and that plaintiffs did not claim any interest in the land, and that his belief was induced by their acts, conduct and statements. No statements upon which this belief was based are set out. There is nothing pleaded to indicate that anything was said by plaintiffs that authorized or warranted any such belief. No misrepresentations are charged. The acts and conduct relied upon in this part of the answer are evidently the failure to notify defendant of plaintiffs’ title. This was of record. It was as much the duty of defendant as of plaintiffs to know whether the tax proceedings under which he claimed were regular and valid. They were under no obligation to inform him upon that subject. Silence upon plaintiffs’ part was no breach of duty and will not estop them from asserting their
IY. It is assigned as error that the court excluded questions asked by defendant, tending to show that plaintiffs did not pay the taxes upon the land, and knew that defendant was paying them. The failure of plaintiffs to pay the taxes, in the absence of a legal sale for nonpayment, would not divest their title, nor would the payment of them by defendant give him title. Then, too, the payment of these taxes by defendant, seems to have been fully established by other evidence and he was given a lien upon the land for same. He appears to have had all the benefit that could have arisen to him upon any of his defenses, from proof of plaintiffs’ failure to pay the taxes and the payment of same by defendant. Defendant had the benefit of proof of their nonpayment, so far as it had any tendency to show acquiescence in his claim of ownership of the land. The fact was fully proved by other evidence.
We find nothing in the rulings of the trial court that will justify interference with its judgment. It is accordingly affirmed.