Cobb v. Griffith

• Decision Date: 25 April 1882
• Citation: 12 Mo.App. 130
• Court: Missouri Court of Appeals
• Parties: FRANCIS H. COBB, Appellant, v. GRIFFITH & ADAMS SAND, GRAVEL, AND TRANSPORTATION COMPANY, Respondent.

12 Mo.App. 130

FRANCIS H. COBB, Appellant,

v.GRIFFITH & ADAMS SAND, GRAVEL, AND TRANSPORTATION COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 25, 1882.

1. The statute of Illinois, which provides that no person except the one who has title at the time of the sale, shall be permitted to question a tax-title, confers on the owner thereof a property right, which operates in his favor in an action brought in this state for the value of sand taken from the land.

2. A judgment will be reversed for the admission of incompetent testimony, where it is probable that an instruction to disregard it failed to remove the impression made by it.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Reversed and remanded.

CHARLES W. THOMAS and ROBERT A. HALBERT, for the appellant.

M. L. GRAY and HOLMES & TALBOT, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff claims compensation for one hundred thousand cubic yards of sand taken by the defendant from beneath the waters of the Mississippi River, on land of which the plaintiff alleges he is the owner, near the Illinois shore. The defendant denies generally, and pleads a license from the true owner, and the statutory limitation of five years. The verdict and judgment were for the defendant.

The controversy has been directed chiefly on both sides, to the merits of a tax-title held by the plaintiff, and to the defendant's right to attack the same in this proceeding. The laws of Illinois were introduced in evidence, and the plaintiff exhibited a tax-deed to his grantor, which appeared to conform therewith. The Illinois statute provides, that “no person shall be permitted to question the title acquired by a collector's deed, without first showing that he or she, or the person under whom he or she claims title, had title to the land at the time of the sale, or that the title was obtained from the United States or this state, after the sale, and that all taxes upon the land have been paid by such person, or by their agent, or the person under whom he claims title as aforesaid.” Gross' Stats. Ill. 575, sect. 15. It appears from the bill of exceptions that the defendant introduced evidence tending to show that all the taxes had been paid on the land in question for the year in which delinquency was assumed by the collector's deed. No objection was made to the testimony at this point. Afterwards, the defendant offered a number of depositions to prove the same facts. The plaintiff objected, on the ground that the defendant was not, under the statute above quoted, in a position to attack the tax-deed--no title being shown in the defendant, or any one under whom it claimed. The statements are here somewhat confused, as to the order of occurrences, but the facts seem to be that the court, considering the testimony to be already admitted without objection, overruled a motion to exclude it, because the point might be better preserved in an instruction. What, or how much, was comprehended in the testimony first offered on this point and not objected to, does not appear. But, upon the ruling just mentioned, the defendant read at length seven depositions of witnesses who appeared to be the real owners of the property in question, and who had paid the taxes for which the land was erroneously sold. The court afterwards instructed the jury, that the defendant could not question the plaintiffs' tax-titles, without having first established that the defendant, or the person under whom it claimed, had title to the land at the time of the sale for taxes, or had since acquired it from the United States or the state of Illinois. Two questions here arise: 1. Was it error to admit the testimony? 2. If erroneous, was the error cured by the instruction?

For the defendant, it is contended that the Illinois statute prescribes a rule of practice only, and not a rule of property or title, and therefore it can have no force in Missouri, where there is no such law. Where, in one country, there is a personal disability to sue, as of slavery, non-age, coverture, etc., such disability will not follow the person into another jurisdiction wherein it is not recognized by law. So of the statute of limitations and other regulations which apply exclusively to the remedy. But, in this instance, the rule is not one of personal disability merely. It creates no exclusion from the courts in a general sense, but demands that the claim to be asserted shall be reinforced by a certain other interest or title in the property. It says, in effect, that the title of the purchaser at a tax-sale, even though the taxes have been paid, and the sale is therefore unauthorized, shall be good against all the world, excepting only the person who has title at the time of the sale, or who afterwards acquires it from the national or state government. Such, in other words, is the nature of the title conveyed by the collector's deed. The rule is, therefore, one of property right, and not one of personal disability. It must follow him who holds the right, wherever he may go. For the same reasons, the rule is not of...