Hill v. Atterbury
88 Mo. 114
Mo.
1885
Check Treatment
Norton, J.

This is а suit in ejectment to recover ■certain lands ih DeKalb county described in the petition. The cause" was taken by сhange of venue to’ Buchanan county, where on a trial judgment was rendered for the ‍‌‌‌​​‌‌‌‌‌‌‌​‌‌‌‌​​‌‌‌‌‌​​‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌​‌​‍defendants, from, which the plaintiffs hаve appealed. The suit was brought against defendant Atterbury, and on motion of one Ira Brown, he was made defendant over plaintiffs’ objection and this action *118of the court is the first ground of error assigned. In ejectment suits, it is provided by section 2245, Revised Statutes, that “the person through whom defendant claims title to the premises ‍‌‌‌​​‌‌‌‌‌‌‌​‌‌‌‌​​‌‌‌‌‌​​‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌​‌​‍may, on motion, be made a сo-defendant.” Defendant Atterbury claimed through Brown, and by the very terms of the statute the court was authorized to allow him tо come in and defend. Hayden v. Stewart, 27 Mo. 286. If Atterbury held the possession of the land under Brown, ‍‌‌‌​​‌‌‌‌‌‌‌​‌‌‌‌​​‌‌‌‌‌​​‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌​‌​‍then Brown had a right as landlord to defend the suit. Sutton v. Cassellegi, 77 Mo. 897.

The defеnce set up in' the answer was a tax deed conveying the land in controversy to Brown, and the special statute оf limitations of three years under section 221, "Wagner Statutes, in force at the time the sale was made. Both answers set uр with great particularity all the facts stated in the tax deed, and plaintiffs moved to strike out such portions of the answеrs on the ground that the matters stated were provable on the trial under the general issue, and should not, therefore, hаve been pleaded. The statute of limitations relied upon, only applied to cases where a claim of title was set up ‍‌‌‌​​‌‌‌‌‌‌‌​‌‌‌‌​​‌‌‌‌‌​​‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌​‌​‍under a tax deed, and no valid objection can be made to ah answer which sets up with particulаrity the facts which bring the defendant’s case within the operation of the statute. If not necessary to plead it with such рarticularity, and the facts stated could be proved without their being stated under the general issue, the refusal of the сourt to strike it out was not such an error as to justify a reversal, inasmuch as by such statement the plaintiffs were informed of thе specific grounds on ewhich the defence relied, of which they might otherwise have been ignorant until proved on the trial.

At the trial plaintiffs put in evidence various deeds which showed title in them to five-sixths of the land in ‍‌‌‌​​‌‌‌‌‌‌‌​‌‌‌‌​​‌‌‌‌‌​​‌​​‌‌‌​​‌‌‌​‌​​‌‌​‌​‌​‍controversy. To overcome this title, defendants put in evidence a quit-claim deed from Brown to Atterbury, *119dated in July, 1876, They also put in evidence a сollector’ s deed which recites in statutory form, among other things, that the lands in controversy were exposed to sаle by the collector on the eighth day of October, 1873, for the taxes of 1872, that they were not sold for want of bidders and wеre forfeited to, the state, and that after-wards on the thirty-first of October, 1873, they were purchased by Ira Brown. This deed was оbjected to on the ground that it was void on its face, in that it recites that the land was offered .for sale on the eighth dаy of October, 1873, which could not have been the first Monday in October, the time at which the sale was required to be advertised. While the statute provides that such sales shall be advertised for the first Monday in October, it also provides that “the collector shall continue such sales from day to day until all the tracts of land, or town or city lots, contained in the dеlinquent list on which taxes and costs, remain unpaid, shall be sold or offered for sale.” 2 W. S., p. 1201, sec. 198. The form prescribed in the statute does not provide for nor require the collector to state in his deed the adjournment of sales from day to day ; it only provides that the day on which the particular tract or tracts of land conveyed is offered for sаle is the day which is to be recited in the deed. The objection to the introduction of the deed was properly оverruled. Declining to insert in this opinion a copy of the deed because of its length we are justified in saying after a сareful comparison of it with the statute that it follows strictly and literally the form prescribed, in the statute, for tax deeds and is upon its face valid and effectual.

It was shown by defendants that all the records and papers of the county court and collector of revenue for DeKalb county relating to the taxes of 1872, were destroyed by fire in 1878 and herе defendants rested their case, and plaintiffs offered to prove by competent evidence that the lands in сontroversy had not been assessed *120for taxes for the year 1872, that no tax book was issued from the office of the сlerk of the county court showing a tax levied on said land for 1872, that there was neither petition for judgment, nor judgment, nor execution, nor other process issued directing the collector to sell said land for the taxes of 1872. This evidence wаs objected to and the objection sustained, and, we think, properly, on the ground that the tax deed being valid on its face and having been recorded for more than three years before this suit was instituted, the bar of the special statute of limitations of three years attached and necessarily by force of the statute shut out such evidence as wаs offered. Mason v. Crowder, 85 Mo. 526; and Hopkins v. Scott, 86 Mo. 140, where it is held that recording a tax deed which is valid on its face, puts the three years statute of limitations in mоtion from the time it is recorded. 'While counsel make the point that section 221, Wagner’s Statutes, page 1207, which declares that “ any suit or proceeding against the tax purchaser, his heirs or assigns, for the' recovery of land sold for taxеs, or to defeat or avoid a saje or conveyance of land for taxes (except in cases where the taxes have been paid, or the land was not subject to taxation, or has been redeemed as providеd by law), shall be commenced within three years from the time of recording the tax deed, and not thereafter * * *” is unconstitutional and void, we have not been cited to any authority which sustains it, but on the contrary the authorities cited in the brief of respondent’s counsel from all the states, having similar statutes, sustain the validity of such enactments. Judgment affirmed.

All concur.