Stierlin v. Daley

37 Mo. 483 | Mo. | 1866

Holmes, Judge,

delivered the opinion of the court.

This was an action of ejectment upon a tax title. The plaintiff produced in evidence two tax deeds, executed by the State Register of Lands, the one to Amelia Welcker, and the other to A. Welcker and A. Stierlin, as purchasers at the sales for taxes; and the deeds, dated March 12, 1868, were executed by the Register of Lands under his seal of office, and were recorded without having been acknowledged. He also offered in evidence a tax deed of the date of May 7,1863, executed by the comptroller of the City of St. Louis to Amelia Welcker, purchaser at the sale, under the seal of the corporation, signed by him, and attested by the city register, duly acknowledged by the comptroller, and recorded. Some other evidence was introduced, and the plaintiff asked the court to instruct the jury as follows:

1. That the tax deeds executed by the Register of Lands of the State of Missouri, if genuine, are prima facie evidence of title in fee simple in the purchasers therein named.

2. That the tax deed executed by George K. Budd, comptroller of the City of St. Louis, if genuine, is prima facie evidence of title in fee simple in the purchaser therein mentioned. ,

These instructions being refused, the plaintiff took a non-suit, with leave to move to set the same aside.

The Revenue Act of 1867 (§ 33) requires the Register of Lands to “ execute good and sufficient deeds of conveyance to all persons entitled thereto”; and provides (§ 34) that such deeds, executed and recorded as required by the act, shall, without further proof, be received as evidence in all courts in which the title is brought in question, and that they shall be prima facie evidence of title in fee simple in the purchaser, and the burden of proving that the title is not in the person claiming to hold under the deed from the Register of Lands shall be upon those claiming adversely to such deed — Laws of 1857, p. 99. And the same act provides that such tax deed shall be taken and held to be within the terms and meaning of the fortieth, forty-first and forty-second sections of the Act concerning Conveyances, and that, until recorded under those sections in the office of the recorder of the county where the land lies, the deed shall not have any effect against the rights of any one not having actual notice thereof — § 42, p. 100. The fortieth section referred to provides that deeds, proved or acknowledged, and certified in the manner prescribed in that act, maybe recorded. The other sections provide that deeds when recorded shall impart notice, and that until recorded they shall not be valid, except as between the parties thereto and such as have actual notice thereof — R. C. 1855, p. 364. These deeds were neither proved nor acknowledged ; nor was there any proof of their execution, or of actual notice. They are to be governed by the express provisions of the statute, and the statute must be strictly complied with. Without being proved or acknowledged, they could not be recorded under those sections; and without being recorded as therein required, they are to have no effect against other parties, without actual notice. This alone was a sufficient reason for refusing the first instruction.

The other instruction proceeds upon the forty-third section of the same act of 1857, which declared that “all tax deeds for lots or lands sold under ordinances of the City of St. Louis for the non-payment of taxes due said city, shall be received in like manner, and shall have the same force and effect, when recorded, as State tax deeds in this article provided for.” This section introduces a new subject, and is exceedingly vague and indefinite. For one thing, it would seem necessarily to be inferred that it must first be shown that the lots or lands in question had been sold under ordinances of the City of St. Louis for the non-payment of taxes due the city. For another thing, it might be conjectured that the framer of the act had intended to make such deeds admissible in evidence in the courts, but the words of the act have not said so. It is said that they shall be received, and have the same force and effect, when recorded, as State tax deeds have when recorded, as provided for in that article. The effect of recording is simply to impart notice’. It is very probable that the legislator had some general intent, in his mind, to place the deeds on the same footing as to being admissible in evidence in court, and as to being prima facie evidence of title when recorded as the act requires; but the language used does not directly and plainly import all this. It is capable of another construction. The provision, so interpreted, would be in derogation of the common law rules of property in real estate, as the provisions about State tax deeds are also; and the principle seems to have been very generally acted upon in this class of cases, that the common law rules must be adhered to, except so far as they have been changed by the very words of the statute, and that all such statutes, authorizing proceedings which are to have the effect of divesting the citizen of his title to real estate, though for the good of the public, as well as the powers given by such acts, must be strictly construed, and strictly pursued — Sibley v. Smith, 2 Mich. 490; Blackw. Tax T. 86; Tanner v. Stine, 18 Mo. 580. If we were to adopt the most liberal rules of construction, and proceed to gather the intent from the whole p\irview of the act, with the largest intendment in favor of the tax title, as might be proper in the construction of statutes in general, it is very possible that we might hold that this section was intended to made city tax deeds receivable in evidence in all courts, and to give them the effect of being prima facie evidence of title in fee simple in the purchaser. But we do not conceive that we are at liberty to do so, in a case of this kind. The rule of strict construction forbids it; and we think the rule is founded in justice and good policy.

On the case made, we think both instructions were rightly refused.

Judgment affirmed.

Judge Wagner concurs; Judge Lovelace not sitting.

Motion for re-hearing overruled.