Smith v. H. D. Williams Cooperage Co.

100 Mo. App. 153 | Mo. Ct. App. | 1903

BLAND, P. J.

1. The time of filing bill of exceptions was extended by an order of the court from June 15,1901, to August 17, 1901, and afterwards by successive orders of the judge made in vacation the time was extended to April 14, 1902. The bill of exceptions was filed March 31, 1902. The orders made in vacation by the judge extending the time in which to file bill of exceptions are in the following form:

“Now at this day it is by the judge of the Butler Circuit Court, in vacation, ordered, that the time heretofore allowed the defendant for filing its hill of exceptions he extended for a further period of sixty days from and after the expiration of the time heretofore allowed for filing hill of exceptions herein.”

No written application was made by defendant for these orders.

For the reason that the orders themselves, nor any papers accompanying them, show for what cause, or that for good cause, the time in which tó file bill of exceptions was extended, respondent contends they are void.

Section 728, Revised'Statutes 1899, provides that the bill of exceptions may be written and filed during the term of court at which the cause was tried, or within such time thereafter as the court may by order entered of record allow, and that the time may be extended by the court or judge in vacation “for good cause shown.”

The power of the judge to extend the time in which to file bill of exceptions, whether the order therefor be made in vacation or in term time, is statutory. When made in vacation, it should show, either upon its face or by its file-marks, that it was made at a time when the judge possessed the authority to make it. Mitchell v. Williams, 79 Mo. App. (St. L.) 389. So long as the authority to make the order continues in the judge, his jurisdiction to make it is as full and complete in vacation as in term time. The' power is not one to be exercised arbitrarily but, in the language of the statute, “for good cause shown.” The statute leaves the pro-propriety of making the order to' the sound discretion of the judge, and when he exercises that discretion the presumption, in the absence of any contrary showing, is that he did not abuse it. State v. Lord, 118 Mo. 1; Leonard v. Sparks, 117 Mo. 103; City of St. Joseph to use v. Farrell, 106 Mo. 437; State ex rel. v. Wayne County Court, 98 Mo. 362.

The several orders extending the time for filing’ bill of exceptions were made at times when the court, or judge, had jurisdiction to make them and the presumption will be indulged that they were made “for good cause shown.”

2. The fact that the defendant demurred to the evidence at the close of plaintiff’s evidence and again at the close of all the evidence, raises the question as to the validity of plaintiff’s tax deed.

The deed was made under the revenue laws of March 30, 1872.

Section 217, of the Act of 1872 (2 Wag. Stat., p. 1205), prescribes the form of the deed to be executed by the collector. The deed read in evidence attempted, to follow the statutory form, and in the main did so. But it is fatally defective in that it shows affirmatively upon its face that in making the sale the collector did not comply with section 189, of the act, which requires that the “collector shall offer for sale publicly, separately, and in consecutive order, each tract of land, or town lot, or city lot.” The deed on its face shows that both eighty-acre tracts were sold at one time and for the gross sum of $7.83.

In Allen v. Buckley, 94 Mo. l. c. 160, the Supreme Court, commenting on a deed conveying more than one tract of land made under the revenue laws of 1872, said: “When more than one tract is included in the deed it should show, either expressly or by necessary implication, the sale of each tract separately for its own tax. For this reason, if for no other, that the deed does not show this, the court was justified in holding it to be invalid. ’ ’

Black on Tax Titles (2 Ed.), section 260, says:. “When the taxes are assessed to different persons, or upon different and distinct interests, or separate lots, or parcels, the officer can not legally advertise and sell the whole of a tract, including the several interests or lots distinctly and separately taxed, or such portion of the same as shall be necessary to pay the taxes, but each interest or lot must be separately advertised and sold for the payment of that tax only for which it was liable; otherwise the whole sale will be void.” In support of the tax the author cites in a footnote numerous cases from many States.

3. Section 221 of the Act of 1872 provides that any suits against the tax purchaser to recover land shall be commenced within three years from the time of recording the tax deed. It is contended by respondent, that he was entitled to hold the land under this special statute of limitation. It has been repeatedly held that a tax deed, void on its face, will not set this statute in motion. Mason v. Crowder, 85 Mo. 526; Pearce v. Tittsworth, 87 Mo. 635; Pitkin v. Reibel, 104 Mo. 505.

4. Plaintiff further insists that he is entitled to hold the land until he is remunerated for the taxes, etc., he has paid on them, and invokes the equitable provision of section 219, of the act. The equity of this statute can only be applied when in a suit in ejectment the owner succeeds in recovering the possession of the lands from the person in possession under a tax deed. This is not such a suit, and besides, the evidence discloses that plaintiff was never in the actual possession of the land, nor was he constructively possessed of it by virtue of a valid tax deed.

It follows that defendant’s demurrer to plaintiff’s evidence should have been sustained.

The judgment is reversed.

All concur.