86 Mo. 140 | Mo. | 1885
— This is an ejectment suit to recover possession of a certain lot in the City of Kansas, described in the petition, and on the trial of the cause defendant obtained judgment, from which plaintiffs have appealed. It is conceded that the title to the lot in question is in the plaintiffs, and that they are entitled to recover, unless their title has been divested by a certain tax deed, put in evidence, through which defendant claims, or unless their right of action was barred by limitation. It is contended by plaintiffs’ counsel that the tax deed, under which defendant claims title, is void upon its face. The circuit court held it to be valid, and this ruling of the court is one of the grounds of error assigned.
The first question, therefore, presented for determination is whether or not said deed is void on its face. And this question is to be determined by an application of the statute authorizing its execution to the deed, to ascertain whether it conforms to the statutory requirements. Before proceeding to make such application it may be observed that it seems to be settled, when a statute pre
It is true that other required recitals are made in the deed in the exact language used in the form prescribed, from which an inference can be drawn that the collector did expose to public sale the property for the payment of taxes, interest and costs thereon due and unpaid ; but this does not comply with the requirement of the law, which is that the recitals shall be substantially and affirmatively made, and not that one fact, required
Section 64, supra, of the charter requires the following to be substantially stated by the collector in a tax deed, viz: “ That ■ the following described real property, situated in the City of Kansas, in the county of Jackson and state of Missouri, was subject to taxation for the year or years A. D., 18 — , and whereas the taxes assessed upon said real property * * * remained due and unpaid at the date of the sale hereinafter mentioned.” Suppose the collector in making his deed, after describing the property and stating that it was subject to taxation for a specified year or years, and that the taxes thereon for such year or years remained due and unpaid at the date of the sale, omitting the word assessed ; could it be reasonably claimed that such omission would be immaterial ? We think not, although in such case it might be as plausibly argued, as it is in the omission of the words in- the case before us, that such omission is not material, inasmuch as, from the recital
The above recitals are in the form prescribed by the •statute and it is argued that it can be plainly inferred from them that another required recital, viz': that the ■collector did expose the property to public sale “for the payment of taxes, interest and costs remaining due ,-and unpaid, ’ ’ was made. We concede that this inference nan be drawn, but it does not, therefore, follow that when the legislature has required a fact to be substantially affirmed, which is not thus affirmed, that, from other facts, which it, also, requires to be substantially affirmed, •and which are affirmed, and which neither perform the same office as the omitted fact, nor necessarily include it, we can infer the omitted fact and substitute, by inference, what the law-making power has said must be affirmed. The office of the recital that the collector exposed the lots in question to sale “for the payment of taxes, interest and costs then due and unpaid,” was to ffiiow that he exposed it to sale for the only purpose for which, under the law, he could sell it. The office of the «other recitals was to show that it was in fact sold for the very purpose for which it had been offered for sale, and that the proceeds of the sale were applied to that pur
Besides this, when it is considered that the omitted words in this deed expressed the purpose for which the estate was to be sold, and that the city collector had no power to sell it for any other purpose, the recital was necessary in order to show on the face of the deed his authority to sell. When it is further considered that, the sale in question was not a judicial sale, but one made without notice, and that the tax deed, when made and recorded, had an importance and effect attached to it not given to a deed to a purchaser of real estate at a judicial sale, made under the sanction and authority of a court, in this, that from the time of recording the tax deed it starts to running a three years’ statute of limitations against the original owner of property. If he does not sue to recover (although the tax purchaser may not be in the actual possession of it) within three years from the time of filing the deed, he is forever barred of his right of action. When these facts are considered, in connection with the further fact that the tax deed is made conclusive evidence of some things and prima facie evidence of other things, it is not going too far to say that the legislature intended every recital, required to be substantially made, to be a necessary and material
For further illustration of the principle that a tax deed must show an affirmative compliance with statutory requirements, in addition to the cases hereinbefore cited, the following are referred to : Yankee v. Thompson et al., 51 Mo. 234; Lagroue et al. v. Rains et al., 48 Mo. 536; Large v. Fisher, 49 Mo. 307; Abbott v. Doling, 49 Mo. 302. In the case last cited, in speaking of a sale authorized to be made by a collector without any judgment, it is said : “A collector’s sale is essentially ex parte. The officer does not act under the supervision oí a court; he acts at .his own peril and by his-own advice; and must perform every pre-requisite required by the statute before the title of the citizen can be passed away from him. The deed of the collector’ must show affirmatively that the law has been complied with in all particulars.”
It is further insisted by counsel that, even though the tax deed may be void on its face, the possession of defendant thereunder puts in operation the three years’ statute of limitations, and that, as defendant had been in possession of the lot in question for more than three years before this suit was brought, the action of plaintiff was barred. This precise point has been passed upon at the present term of this court, and expressly ruled against the position taken, in the case of Mason et al., v. Crowder, 85 Mo. 526, where it is held that the sjjecial statute of limitations of three years has no application except where the tax deed is valid on its face.
The judgment reversed and cause remanded.
