255 Mo. 613 | Mo. | 1914
Lead Opinion
OPINION.
I.
There are two answers to this contention. (1)' This particular statute was not pleaded, and while the general statute of ten years was pleaded and could have been relied upon even under a general denial, since, if sustained by the proof, it would create an indefeasible estate in fee (Nelson v. Brodhack, 44 Mo. l. c. 600; Watt v. Donnell, 80 Mo. l. c. 198), and therefore, would disprove plaintiffs’ title, and, hence, fall within the scope of the issue made by a general denial; yet in other cases where the particular statute of limitations is merely a bar to the suit, the rule is uniform that such Statute of Limitations must have been specially pleaded to be available. That wasi not done in this case. (2) The proof did not show that the plaintiffs had reached their majority two years before the bringing of this suit. Por these reasons we overrule this assignment of error.
The only error assignable on this'appeal is that the judgment is for the wrong party, for no instructions were asked or given on the trial of the case, and no other exceptions are saved. We think that the judgment is well sustained by the proof.
Waggoner, the tenant of his codefendant Poore, testified that he knew the heirs to this land. Poore, while in the witness stand, refrained from testifying whether he knew of their ownership. It has been expressly ruled in Watt v. Donnell, supra, that when the tax title is sought to be upheld against a title based on adverse possession, the defendant is entitled to show notice of his title growing out of his open-and hostile possession of the property for the statutory period. In the language of the opinion, “His long continued and notorious possession standing for no
In this case the record owner ostensibly sued, had been dead for fifty years, the assessor and collector had positive knowledge for the last twenty years of that period, that the mother of the plaintiffs and her husband were in adverse possession of the land and claiming to own it, and paying the taxes, regularly assessed against them on said land, and notwithstanding this knowledge, he did not join any of the plaintiffs as parties to the tax proceeding. The fact of the ownership of plaintiffs was within the knowledge of all persons residing in the neighborhood of the land, was admitted by the tenant (Waggoner), whom the tax purchaser put upon the land. The slightest inquiry on the part of the tax purchaser would have revealed it to him since it was common knowledge in the vióinity and was disclosed in the records of tax assessments and payments in the collector’s office. It is plain that the purchaser had full opportunity to acquaint himself with the fact that the taxsuit had not been brought against the present owners of the land. Said Black, J., in speaking for this court, “Notice ‘is actual when the purchaser either knows of the existence of the adverse claim of title or is conscious of
In our view the defendant. Poore was sufficiently put upon his inquiry by the facts shown in this record and therefore in legal intendment had actual notice that the owners of the land, by a title which ripened into a fee by adverse possession of more than twenty years, had not been made parties to the tax suit under which he bought and therefore his deed must be held subject to their rights.
III.
Concurrence Opinion
CONCURRING OPINION.
I do not agree to that implication, and deem the question too important to let such implication be written as the law without respectful and earnest protest.
That the two schemes for collecting back taxes and protecting purchasers cannot stand together is certain, and it is plain to me that the proper interpretation of the 1877 act results in causing the section brought to light by our revisors to perish by construction under well known rules of legal hermeneutics. But it is not necessary to say anything' on the question whether the section was in fact and technically “repealed.” Let it be reserved until reached as a deciding point, if ever, in some case arising on some tax sale made under the revenue scheme of 1872. All necessary to say for the purposes of this concurring opinion is this: That special Statute of Limitation is not applicable, in my opinion, to suits (as this one is) involving tax titles under the revenue scheme in vogue since 1877, to-wit, of enforcing tax collections by suits, summons, actual or constructive service, judgments, special executions, sales thereunder and deeds following such sales. Even Bird v. Sellers, supra, recognizes the view just expressed (p. 32). And Bartlett v. Kauder, written by the same learned judge
There is another section, part and parcel of the same abandoned revenue scheme, section 11507, now encumbering our general statutes. The two sections (with others) were companions in number and in aid of the same legislative thought. One was section 221 and the other section 222 of the old revenue act (Laws 1872, p. 80). It has been ruled that section 11507 is also functus officio so far as applicable to the revenue act of 1877. [Burkham v. Manewal, 195 Mo. l. c. 508.] I cite the last case as persuasive arguendo.
For a generation we have been deciding tax title cases on the theory that a ten-year (not a three-year) statute governed. "Were all the array of cases so decided lapses into an unbroken chain of inadvertence and (more yet) unsoundness? I am not willing to lightly unsettle a rule of property, even by indirection through implication, and therefore dissent from the reasons given for denying the application of the three-year statute in this casé. I put my concurrence in the result on the ground that the statute does not apply to tax sales under laws governing them since 1877. The heresy that the three-year statute is applicable should not be treated with judicial toleration, as if by way of confession and avoidance (as here), but as a snake in the grass to be not only scotched but killed out of hand.
I agree that the Statute of Limitations creates title, is a sword and shield both. I agree that one who has so acquired title and is in open possession exercising acts of ownership is in a position where his actual and notorious possession puts a purchaser on inquiry. That doctrine is announced in the cases, cited by my brother. In this case, too, there seems to be actual notice. But some of the broad language of the opinion may be held to mean that the echo of an ancient possession, abandoned, or not kept up, and which may have once created title, is sufficient without more to put a purchaser on inquiry. When I wrote Adams v. Gossom, 228 Mo. l. c. 581, et seq., I had doubts on that proposition, and still entertain them. Hence 1 desire to be marked as saying nothing thereon in this case.
Subject to the modifications suggested, I concur.