238 Mo. 422 | Mo. | 1911
Lead Opinion
This is another of the numerous suits brought to quiet title under section 2535, Revised Statutes 1909, being section 650 of the revision of 1899, amended. There was a judgment and decree for the defendants and the plaintiff has appealed.
The petition is in the ordinary form; and the answer admits that defendants claim the land, and alleges that they are the owners of the land, and pleads estoppel and laches. It is admitted that John M. Sipes is the common source of title.
We will state the facts in the derivation of the two branches of the title in chronological order. On March 30, 1889, Sipes conveyed the land by general warranty deed to Joseph A. and Lucy S. Titcomb. A tax suit was begun against Sipes as defendant and owner of the land, returnable to the September term, 1889. The record before us does not show the date of the institution of that suit, or the date of the order of publication against Sipes as a non-resident. The terms of the Pemiscot Circuit Court were then held on the second Mondays in March and September, so that it is possible, in the absence of any showing to the contrary, that the suit was begun prior to March 30, 1889,.the date of the deed to the Titcombs. We cannot, however, presume that such was the case; and, for the purpose of this cas.e, we will presume that the suit was begun after that date.
OPINION.
I. The statute requires that suits to enforce the lien for taxes on land shall be brought “against the owner of the property.” It says nothing about the ‘ ‘ record owner, ’ ’ leaving the question of the force and effect of the deed records to be determined by the law outside of that statute.
Such being the case, the collector and the purchaser at the tax sale are governed by sections 2810 and 2811 of the Revised Statutes, which affect them with notice of recorded deeds, and protect them against the existence of an unrecorded deed in the absence of actual notice thereof on their part.
We are not called on to say what would be the effect of a deed made by the record owner after the beginning of a suit against him for the taxes. In this case the deed antedated the institution of the suit and was placed on record after the rendition of the judgment and before the sale under the execution for taxes.
Such being the case, both the collector and the purchaser at the sale under the execution were from
In Hannah v. Davis, 112 Mo. l. c. 607, the court said: “In Davis v. Owenby, 14 Mo. 170, this court held that a valid deed made before judgment, but after-wards recorded before sale on execution, carried title against a purchaser at the execution sale. That opinion has been so long accepted that we decline to re-examine the rule it states. [Parks v. Bank, 97 Mo. 133.] By .an attachment no greater estates or interests in land are reached than by a judgment. So that plaintiff’s position is not improved by reason of their attachment lien, they having received notice of all the facts above stated, affecting the rights of Mills before the execution sale at which they purchased his interest in the land.”
In Davis v. Owenby it was vain to urge that the creditor, by reason of the fact that the debtor appeared by the records to be the owner, was misled into the expenses of suit in order to recover his money, and that such loss was occasioned by the holder of the unrecorded deed. So in Hannah v. Davis, the fact that the attaching creditor was put to the trouble, expense and hazard of the attachment by reason of the deed being unrecorded, did not alter the case. It was clearly held in both those cases that the recording of the deed from the record owner prior to the sale uprooted every right of the purchasers: As no reason in those cases could be found for upholding the sheriff’s deeds, much less can a reason be found in cases of sale for taxes. In such suits the plaintiff is put to no expense. He is not liable for costs or attorney’s fees. The only result of having the tax suit come to naught by the filing of a deed from the record owner
Under our registry laws the constructive notice resulting from the record of a deed has the same effect as the actual notice of an unrecorded deed; yet, in Stuart v. Ramsey, 196 Mo. 404, it was held that the grantee under an unrecorded deed would hold as against the purchaser at a sale under execution for taxes who purchased with notice of the unrecorded deed. We have not overlooked the fact that in that case the collector had notice prior to the institution of the suit that there was such unrecorded deed. But that does not change the result.
The conclusion necessarily follows that the recording of the deed to the Titcombs prior to the sale for taxes was sufficient to entitle the grantee in such deed to hold the title as against the purchaser at the tax sale.
Lamm, J., in Harrison Machine Works v. Bowers, 200 Mo. 219, collected the authorities on this subject, and clearly showed the pathway along which one must travel to the proper conclusion, at the same time saying: “But it is not necessary for us to decide that question in this case, and we suggest it, but leave it open. ’ ’
We are of the opinion that the title under the deed to the Titcombs must and does prevail over that under the sheriff’s deed under the execution for taxes. •
II. Our attention has been called to State ex rel. v. Sack, 79 Mo. 661, in which it was held that where a suit is brought against the record owner and the true owner is afterwards made a party and seeks to redeem the land from the taxes he must pay all the costs,, including those incurred prior to his being made a party. That case, so far as that point is concerned, has never been cited in any other case. That case was not
III. Appellant’s counsel have insisted that this case is controlled by Hilton v. Smith, 134 Mo. 499. In that case it was held that the person who claimed against the title under the sheriff’s deed under execution for taxes held no title- legal or equitable at the institution of the suit. .He merely held some certificates of purchase at tax sales under the revenue laws of 1872. The court said-: “In the absence of provisions defining the rights of the holder of a certificate of purchase, the generally accepted rule is that until the delivery of a deed he takes no title to the land either legal or equitable.’-’
The judgment is affirmed.
Concurrence Opinion
The foregoing opinion of Rot, C., is hereby adopted as the opinion of the court,