19 Mo. 331 | Mo. | 1854
delivered the opinion of the court.
Donohoe filed his petition against Yeal, to recover treble damages for alleged trespass on a tract of land claimed by Donohoe. The action was under the statute allowing the recovery of treble damages for certain descriptions of trespass.
On the trial, the plaintiff, in order to show his title to the land, gave in evidence a deed from the register of lands of the
The evidence given by the plaintiff in relation to the trespass by the defendant, showed that trees were cut by him on the land after the date of the sale for taxes by the collector, and after the date of the deed from Thomas Donohoe to Stephen Donohoe, the present plaintiff, and before the execution of the deed by the register to Thomas Donohoe.
The Circuit Court, at the instance of the plaintiff, instructed the jury that, “if they found from the evidence, that the deeds read in evidence were executed and recorded as they profess, then they will find that the plaintiff was entitled to the land in the petition mentioned, from the 18th day of April, 1849 ; and if they find that defendant, at any time after that day, and before this suit was brought, cut down or carried away any timber or rails, on or from said land, they will find for plaintiff.”
It is .attempted to apply the rule to a case in which a sale for taxes was made by the collector in October, 1848, and the deed of the register in February, 1851. What was the effect of the sale made by the collector, and what rights were acquired under it ? The ninth section of the revenue act of 1845, (R. O. 950,) required the collector, when a sale was made of any land for taxes, to grant to the party purchasing a certificate therefor. The sections immediately following provided for
The two acts, while they differ, in putting the onus upon different parties, do not differ in the necessity of a compliance with all the requirements of law which are to be observed before the execution of the deed. The principle still remains untouched, that a person claiming to hold land under a sale for taxes, can only maintain his title when the law has been strictly pursued.
It is to be observed that, in neither of these acts is there any intimation that the deed is to afford any evidence of title in the purchaser, prior to its date. In the absence of any such provision, the deed can have no such effect, unless the previous proceedings contemplated the passing of the title to the purchaser before the time appointed for making the deed. If the law did not propose to give the purchaser the title to the land,
Such being the design of the acts, the doctrine of relation cannot be applied to such deed, to give it an effect and operation, contrary to the meaning of the law, by allowing the person claiming under it, to maintain, not only actions of trespass for injuries done after the sale, and before the conveyance by the register, but actions for the rents, issues and profits accruing during that period. The whole scheme of these acts very plainly shows that such a construction, or applying the fiction of relation to such a case, would be contrary to the intention of the legislature.
The instruction of the court, which gave effect to the register’s deed, as supporting the right of the plaintiff to recover for trespasses committed prior to its execution, was erroneous, and, as this appears to be a question that covers the case between the parties, it may not be necessary to touch upon other points presented in the argument.
The judgment of the Circuit Court is, with the concurrrenee of the other judges, reversed, and the cause remanded.