Sullivan v. Donnell

90 Mo. 278 | Mo. | 1886

Black, J. —

This is an action of ejectment .for lot 6, block “II,” Ransom & Talley’s addition to the City of Kansas. Defendant relies upon a tax deed made by the collector of that city under its charter, for taxes due for 1877. The deed is based upon a sale at which the city comptroller bid off the property for $2.82, the amount of the tax, certificate assigned to- Cannon, and by him assigned to Crane, to whom the tax deed was made on the eighth of June, 1881. The tax deed, which was offered in evidence and excluded by the court, recites that the property was subject to taxation for 1877, and that the taxes remained ■ unpaid, and then proceeds as follows : “And, whereas, the city collector of said City of Kansas did on the tenth day of November, 1877, by virtue of the authoiity in him vested by law, at the sale begun and held on the first Monday of November, 1877, the first day on which said real property was advertised for sale [which sale was continued from day to day up to and including the tenth day of November, 1877], expose to public sale, at the office of the city collector, in the City of Kansas; aforesaid, between the hours of ten o’clock in the forenoon and five o’clock in the afternoon, and in conformity,” etc.

This deed is in the exact form prescribed by the charter, with the exception that the words included in brackets are not in the form, and with the further exception that the form reads, “ at the sale begun and publicly held.” The question is, whether the omission of the word “publicly ^ renders the tax deed void on its face. We may say at the outset that there can be no doubt but that the statutory form applies to those cases where the property is bid off by the city in the first instance, as-well as to those cases where the property is purchased by individuals at the tax sale. In the former case the tax deed will vary from the form so as to state the facts truly. ' That the form does apply in both cases is clear from a consideration of sections 50 and 63, of article 6, of the charter (Acts of 1875, p.- 233), followed by section 64, which applies to all tax deeds. Nothing said in Skinner v. Williams, 85 Mo. 492, ought to lead to a contrary conclusion. Section 64 provides that “tax deeds executed by the city collector shall be substantially in the following form,” which is then given, and “ when substantially thus executed and recorded, shall be prima facie evidence in all courts,” of certain facts and conclusive evidence of certain other facts. There-can be no doubt but that the deed, to be any evidence at all, must be in substantial compliance with the form. This is the criterion established by the legislature, and we have no power to vary it.

The question then comes to this, is this deed still substantially in compliance with the form % By the form it is made- to appear affirmatively, first, that the sale when first begun was publicly held, i. e., a public sale ; second, that subsequently, and when this property was sold, it was exposed to public sale. Because of the omission of the word “publicly” in the deed, the second affirmative statement only is made to appear, and, if the first appears at all, it is only by way of inference from the second. It was said in Hopkins v. Scott, 86 Mo. 144, when these same charter provisions were under consideration : “ It is true that other required recitals are made in the deed in the exact language used in the form prescribed, from which, an inference can be drawn, that the collector did expose to public sale the property for the payment of taxes, * * * but this does not comply with the requirement of the law, which is that the recital shall be substantially and affirmatively made, and not that one fact, required to be affirmatively and substantially made, may be inferred from other facts recited in the deed, which the statute also requires to be substantially and affirmatively made.” The words contained in this deed, and not in the form, only relate to a continuance of the sale from day to day, and do not in the least aid the omitted recital. Applying, then, the principle upon which the Hopkins v. Scott case was decided, this deed must be held to be worthless, unless we can say it was immaterial whether the sale, when begun, was publicly held or not. This we cannot do. The charter everywhere contemplates and provides for a public sale, from first to last, no matter how long continued, and the collector has no power to make any other. If he does not begin the sale on the first Monday of October, under section 42, he must commence it on the first Monday of November, under section 52. While the sale may be continued from day to day, he must, at least, begin on that day, the day for which the notice of sale is given, and if not begun then the power to sell becomes functus officio. Prindle v. Campbell, 9 Minn. 212; Wilkins’ Heirs v. Huse, 10 Ohio, 139. A sale begun on the first Monday and continued to the tenth, without being public, would be no sale at all within the contemplation of law. The recital that the sale, when begun, was publicly held, is, therefore, material. • The fact it recites is material, and the fbrm of the deed also makes it a material recital, and it cannot be supplied by inference from some other recital, which is^also made matter of substance by the same form. The recitals in the deed need not be in the exact order in which they appear in the form, nor need they be in the same words. Other words of equivalent import will do, but wlien tlie form is departed from it should still leave all that certain which is made certain by the form. There is no hardship in this, for, in looking at the whole deed, it will be seen that the specific recitals relate to those matters occurring at the time of the sale and subsequent thereto, and in the most of which the purchaser, by himself or assignor, is a participant. He may well be required to see to it that he has a deed fair on its face, and especially when he has to but compare it with a statutory form.

The deed in this case does not comply with the law, and is, therefore, void, and the judgment is affirmed.

Henry, C. J., concurs in the result. The other judges concur.