Fleckenstein v. Baxter

| Mo. | Mar 13, 1893

Black, P. J.

This is an action of ejectment for eighty acres of land, being two forty-acre tracts. The plaintiff’s title is as follows: First, a patent from the United States to Charles Schloegel, dated the eighteenth of March, 1858; second, a deed from Schloegel to the plaintiff dated September 2, 1887, recorded the fifth •of September, 1887.

The court found for defendant as to one forty-acre tract, and for the plaintiff as to the other, namely, the northwest quarter of the northwest quarter of a given section. This is the tract still in question. For title to this parcel, the defendant introduced the following evidence: First, a sheriff’s deed to Hugh D. Marshall dated March 22,1882, which was not recorded until the fifth of November 1887; second, a quitclaim deed from Marshall to defendant dated June 17, 1885, recorded September 12, 1885. The sheriff’s deed to Marshall recites a judgment recovered on December 4, 1881, in a suit by the collector against Charles A. Schloegel to enforce the state’s lien for delinquent taxes for the years 1865 to and including 1873, and from 1877 to and including 1879, and a sale to Marshall made on March 23, 1882, by virtue of a special execution issued on that judgment.

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 Mm. 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 e*xpire 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 after 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. Surely the purchaser at the sheriff’s sale is in as good a position with an unrecorded deed as he would be without ever having received a deed.

We therefore hold that plaintiff purchased with notice of the claim of defendant. With this result it is not necessary to consider the instructions, nor is it-necessary to speak of the evidence offered to show actual notice on the part of the plaintiff. The judgment is reversed and the cause remanded.

All concur-