85 Mo. 526 | Mo. | 1885
Lead Opinion
This is an action of ejectment for eighty acres of land in Daviess county. William B. Mason was the patentee of said land, and died seized thereof in 1859, and the plaintiffs are his sole heirs at law. The defendant claims title under a tax deed from the collector of Daviess county, executed on the fourteenth day of March, 1876, and recorded on the same day, and purporting to have been "made in pursuance of a sale by the collector in October, 1873, for the taxes of 1872. The defendant went into possession in the spring of 1877, and this suit was brought on the twenty-eighth of July, 1879, more than three years after the tax deed was recorded, but in less than three years after the defendant entered ■ into possession.
The statute applicable to this suit provides that “any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes (except in cases where the taxes have been paid, or the land was not subject to taxation, or has been redeemed, as provided by law), shall be commenced within three years from the time of recording the tax deed, and not - thereafter.” W. S., p. 1207, sec. 221. It is further provided by the same act that “any person hereafter putting a tax deed on record in the proper county, shall be deemed to have set up such a title to the land described therein as shall enable the party claiming to own the same land to maintain an action for the recovery of the possession thereof against the grantee in deed, or any. person claiming under him, whether such grantee or person is in actual possession of the land or not.” W. S., p. 1207, sec. 222.
To avoid the limitations contained in section 221, the provisions of which were specially pleaded by the defendant, the plaintiffs contend that the deed under which the defendant claims does not conform to the require
We will take judicial notice of the fact that the first Monday in October, 1873, was the sixth day of October, 1873. It will be seen, therefore, from the recitals in the deed that the land in controversy was, after being forfeited to the state, again publicly sold on the same day to the defendant. This sale being not only without authority of law, but contrary to positive provisions of the statute, and without even a color of right, was a nullity, and the deed made in pursuance of such sale, is void upon its face. It is contended by the defendant, however, that, although the deed may be void, yet, under numerous decisions in this state and elsewhere, it constitutes color of title, and being recorded, is sufficient to set the special statute of limitations of three years in motion.
Under a statute of Wisconsin similar to section 221, supra, of our law, it has been held by the Supreme Court of that state that an action cannot be maintained by the original owner of land sold for taxes, against one who has been in possession of it for three years, claiming title in .good faith under the tax deed, although the deed is void upon its face. Edgerton v. Bird, 6 Wis. 527; Sprecker v. Wakeley et al., 11 Wis. 432; Lindsay et al. v. Fay, 25 Wis. 460; Ocanto Co. v. Jerrard, 46 Wis. 326; McMillan et al. v. Wehle et al., 55 Wis. 685. But in the •case last cited it was expressly decided that to make the limitation of three years prescribed by the statute available to persons claiming title under a void tax deed, actual and adverse possession of the land must have been taken and held during the three years next after the recording of the tax deed. Adopting these decisions as expressing the true construction of section 221 of our statute, and the plaintiff’s action was not barred, as the
Nor can the construction thus placed upon section 221, be modified or affected by section 222, which declares that a person putting a tax deed on record shall be deemed to have set up such a title to the land described therein as will authorize a suit against him or his assigns, although he or they may never have taken possession under such deed. The deed contemplated by this section, is manifestly such a deed as is prima facie good and sufficient to carry the title, and even when so construed the constitutionality of such an enactment is exceedingly questionable. Such a law cannot properly be called a limitation law, and “a person who has a lawful right and is actually or constructively in possession, can never be required to take active steps against opposing claims.” Groesbeck v. Seeley, 13 Mich. 329; vide Spurlock v. Dougherty, 81 Mo. 171. The judgment of the circuit court, which was for the plaintiff, will be affirmed. The-other judges concur.
Rehearing
On Re-hearing.
The conclusion reached in the opinion heretofore delivered in this cause is adhered to; but wherein it holds that a tax deed, void upon its face, constitutes color of title, and when recorded sets the special statute of limitations of three yeaib in motion, if the purchaser takes and holds continuous possession under it for the period of three years before the institution of a suit by the legal owner to recover' possession, is retracted. The special statute of limitations has no application except where the tax deed is valid upon its face.
We are aware that the cases in the Wisconsin reports, cited in the former opinion, sustain the contrary view, but several respectable courts hole the doctrine herein announced. Moore v. Brown, 11 Howard (U. S.) 414;
