Pearce v. Tittsworth

87 Mo. 635 | Mo. | 1885

Rat, J.

This is an action of ejectment, brought January 10, 1881, in the circuit court of Schuyler county for one hundred acres of land in said county. Plaintiff showed a regular chain of title. Defendant claims title under a tax deed of forfeited lands to W. C. McBee, for taxes for 1872, executed and recorded December 6, 1876, and pleads the special statute of limitations under section 221, page 1207, Wagner Statutes.

The undisputed facts, as shown by the record, are: The land in controversy was entered in 1847 and 1852 by. Robert and John Fugate, who fenced the eighty acre tract in 1854 and put forty acres of it in cultivation. They conveyed to Y. W. Payton in 1865. He conveyed to J. W. Hinch, who conveyed to plaintiff in 1869. This eighty acres remained inclosed and in cultivation, .and in the actual possession of the Fugates and their’ .aforesaid grantees until 1867, when the íencés were re-' moved and the land lay uninclosed until April, 1878,! ■during which interval no one was in actual possession. ’ In April, 1878, defendant, for the first time, entered, took possession and inclosed the eighty acre-tract, broke up about sixty acres of it, and has remained in possession. The twenty acre tract lies about two miles from the eighty tract. It is timber land. Defendant offered . in evidence the aforesaid tax deed, to the. introduction ‘ of which various objections were made by plaintiff, all of which were overruled and the deed was admitted. De-! fendant next read in evidence a deed from McBee’s administrator to himself, dated March 22, 1878. Certain - instructions were asked by plaintiff and refused. The finding and judgment were for deíéndant. Motion for' new trial was filed and overruled, and plaintiff brings ' the case to this court by appeal.

It will be seen, therefore, from the foregoing state- ’ ment, that there are two questions submitted and calling' for our determination in this cáse : (1) Whether said tax deed is void upon its face, and (2) whether plaintiff ’s action is barred by limitation under section 221,-Wagner Statutes, page 1207. What we deem for the present purpose the material part of said deed is as. fol-, lows: “* * * And, whereas, on the twenty-eighth .day of November, A. D., 1874, said tracts of- land were-•sold by the collector of Schuyler county, Missouri, for, the taxes, interest and costs and. penalty, due thereon-for the year aforesaid and including also the taxes due for the years 1870, 1871 and 1873, to the state - of-Missouri and the county of Schuyler, the whole ■ amounting to $55.70, said salé being made according' to law-, on the order of the clerk of the county court, - given to Joseph C. Hiner, who received a certificate' of purchase, which certificate was • by' him, on-the' thirtieth day of October, 1875, assigned in writing to Wna. C. McBee.”

Said tax deed was for forfeited lands for the taxes of; 1870, 1871 and 1873, and was made or sought to be made under section 223, Wagner Statutes, page 1207," which provides : “If any person shall desire to- * * *' purchase any tract of of land * *' .*'• forfeited to the'; ■state, he shall apply to, the county clerk, who shall issue his order to the county collector, directing him to receive ■ from such person the amount due on said tract, * * *; particularly describing the property and setting forth the amount due, and upon presentation of said ■ order to the county collector, he shall receive said amount and • .give the person duplicate receipts therefor, setting forth: .a proper description of the property and the amount re- ■ .ceived ; one of which shall be countersigned by the-county clerk, and when so countersigned, shall be evi-" ■dence of the. * * * sale of the property therein described * * * but no such receipt shall be valid' until it- is countersigned by the county clerk. The other : receipt shall be filed by the county clerk. * * * ■ In ■ .cases of.sale the collector and- clerk shall make the re-.ceiptin the form of a certificate of purchase.” Section '217, Wagner Statutes, page 1205, prescribes the form of •' tax deeds therein contemplated and says the same “shall' .conform as near as possible” to the. form therein pre-: .scribed.

We may refer in this connection to what this court has heretofore said, that “ when the statute prescribes - the particular form to be observed in the execution of the; .deed,' that/form becomes substance and must be strictly' pursued.or the deed-will be void.” Williams v. McLanahan, 67 Mo. 499. The provisions of the statuteJ &rp.mandatory,, and while the. deed need not recite liter-I’ly the language of the statute, its recitals must show a, rict compliance with the substantial requirements .ereof. We think it at least doubtful whether the retáis in the deed, as the same are printed and punctited in the abstract and briefs on both sides, expressly low that there was a sale by the collector to Joseph C. iner. The deed recites that the “said tracts of land-ere sold by the collector of Schuyler county, * * *, said sale being made according to law on the order of the. clerk of the county court given to Joseph C. Hiner.” Was the sale made to Hiner by the collector or the order. of the county clerk given to Hiner ? But even if the deed is to be regarded as only awkardly expressed in this respect, and read as a slight transposition will make it read, that the lands were sold by the collector of Schuyler county to Joseph C. Hiner, what, we may ;.sk, is the meaning of and force and effect to be given being . the balance of the recital, viz.: “Said sale made according to law on the order of the clerk-cl the county court given?” As this court has-heretofore said, the recital that the sale was ■ made according to law amounts to nothing. The facts must be • set out so that the court may see whether or not the law has been complied with. Large v. Fisher, 49 Mo. 397; Smith v. Funk, 57 Mo. 239; Spurlock v. Allen, 49 Mo. 180. When was this order of the county clerk given, ■ and what were its contents, and to whom was it given 1 To the collector, which the statute requires ? The deed c.oes not so say. It recites that an order of sale was given, and by whom given, but not to whom given; • Were there duplicate receipts given by the collector for the amounts due, and was there any countersigning of cne of said duplicate receipts by the county clerk as required by the statute, and which the statute declares ■ shall, when so countersigned by the county clerk, bo evidence of the sale ?

The statute further declares that the, receipt shall - not be valid unless it is so countersigned by the county clerk. And further, the deed recites that said Hiner received a certificate of purchase, but the date thereof is not given, nor is there any recital that said certificate of purchase was signed by the collector and clerk, as re-’ quired by the statute, or by either of them, or by any: one ; nor is it recited therein who issued the same,' nor are the contents or substance thereof given. There' must be, as said, a strict compliance with every pre-requisite of the statute before the title of the owner can be-divested. The defects in the deed in question are not’ mere irregularities such as are contemplated and cured by section —, but the deed we think fails to conform to the positive and mandatory provisions of the law, and is, therefore, void on its face. Williams v. McClanahan, 67 Mo. 499 ; Wellshear v. Kelly, 69 Mo. 353.

As to the point made by respondent’s counsel, that the judgment of the county court, being regular on its. f'ack imparts the. verity- that the judgment of the circuit court does and cannot be assailed collaterally, we deem it sufficient to say that the record does not show that any such judgment was offered in evidence. The defendant at the trial relied solely upon the tax deed. The decision of this court in Raley v. Guinn, 76 Mo. 263 is, therefore, inapplicable.

The second and remaining question arising upon’the record, viz.: Whether the plaintiff’s action is barred under section 221 and 222, Wagner’s Statutes, supra, where the defendant, as in this case, claims under a void tax deed, has, since the trial of this cause been before this court in the case of Mason et al. v. Crowder, and again upon a re-hearing of said case. Upon a review of the-, question and authorities this court, upon said re-hearing, in Mason et al. v. Crowder, 85 Mo. 523, held that-the special statute of limitations has no application ex-;cept where the tax deed is valid upon its face ; and that.-, -while void tax deeds have been in many cases held good :as color of title under the general-statute of limitations, • ■-the question of color of title does not arise under the-■special statute in question, which is not based upon adverse possession, but upon the recording of the tax deed. See authorities cited. .

These views, therefore, dispose of the present- case^. and lead to a reversal of the judgment of the circuit-court and a remanding of the cause, which is ordered accordingly.

All concur. Henry, C. J., in the result, -only.