Griffin v. Franklin

Decision Date23 December 1909
Citation123 S.W. 1092,224 Mo. 667
PartiesWILLIAM P. GRIFFIN v. J. E. FRANKLIN, Appellant
CourtMissouri Supreme Court

Appeal from Pemiscot Circuit Court. -- Hon. Henry C. Riley, Judge.

Reversed and remanded.

John A Hope for appellants.

(1) The unpaid taxes for the years 1890 and 1892 constituted a lien on the land, prior and paramount to all others, of which Bader was bound to take notice when he took the quitclaim deed from Erwin, and of which Griffin was bound to take notice when Bader quit-claimed to him. The law also charged them with notice of the judgment enforcing the lien rendered by the Pemiscot Circuit Court in 1895, and they were "bound to go further and see whether that judgment had been satisfied, and this inquiry would have disclosed the execution sale." The judgment was in all respects regular and valid. It makes no difference, therefore, whether the sheriff's deed was recorded or not, or whether correctly recorded or not, when Bader and Griffin purchased they were bound to take notice of the judgment and of the fact that Erwin's title had passed to Mears by the sheriff's sale under the judgment. Fleckenstein v Baxter, 114 Mo. 493. (2) The sheriff made two deeds to Mears, one dated September 4, 1895, and the other dated August 4, 1904. (a) The only defect that can be pointed out in the first deed is its failure to specify the amount of taxes against the land for each of the years 1890 and 1892. It states the amount of taxes adjudged against the land, and says the taxes were for the years 1890 and 1892, without specifying the amount for each year. This is sufficient. Even if the judgment had not specified the amount of taxes for each year, it would not have been erroneous; all the law requires in the judgment is a statement of "the year or years for which the same are due;" it does not require a specification of the amount for each particular year. Sec. 9304, R. S. 1899. (b) But even if the law should be construed to require the judgment to state the amount for each year, failure to comply with the provision would not affect the title of the purchaser at the tax sale. Jones v. Driskell, 94 Mo. 199. (c) If it be conceded that the failure to state the amount of taxes for each year is a defect, it was cured by the second sheriff's deed, dated August 4, 1904, which contains all the necessary recitals and is perfect in form. This deed, although executed nearly nine years after the tax sale, related back to the date of the tax judgment, and thus cut out plaintiff. Fleckenstein v. Baxter, 114 Mo. 496; Ozark Land & Lumber Co. v. Franks, 156 Mo. 673.

C. G. Shepard for respondent.

(1) It is true that the unpaid taxes for the years 1890 and 1892 constituted a lien upon the land; but the question arises how long does this lien continue, and does the sale under a tax judgment impart notice to a subsequent purchaser for value at a date when the taxes would have been barred by the Statute of Limitations had there been no sale when the records of the county failed to show any conveyance of the land for taxes for the years named. In the case at bar the taxes for which appellant claims the land was sold, and by and through which they have title was for the years 1890 and 1892. Yet there was no deed made which was sufficient to give the purchaser any title whatever, or sufficient to impart any notice to a subsequent purchaser for value until McFarland made and executed his amended sheriff's deed, dated August 4, 1904, which was long subsequent to the time that Erwin had sold to Bader, and subsequent to the time that Bader had sold to Griffin, being nearly ten years from the date of the tax sale. If a tax judgment creates a lien within itself which will hold for all this period of time without the sale enforcing the lien being made a matter of record in the deed records of the county where the sale has taken place, then indeed all former holdings of this court on the question that a void deed imparts no notice are wrong. Guffey v. Oreilly, 88 Mo. 418; Hopkins v. Scott, 86 Mo. 140. (2) (a) There is certainly quite a difference between a lien upon property for a certain amount and title to the property. If the appellant in this case, according to his contentions, has a lien on the property by virtue of the tax judgment, this is not title, and until the lien is properly foreclosed and a proper sale made of the property, then the owner of the property can at any time prior to the sale pay off the debt and relieve the property of the lien. So at most, under the contentions of appellant, he should no more than be subrogated to the rights of the State to enforce the lien for taxes, if the lien is not barred by limitations, and the defendant would certainly have the right to pay the amount of the lien against his property and retain the title thereto. (b) But it certainly seems that the appellant cannot claim the property in question as owner thereof and also claim it by virtue of a lien, let it be the tax lien or any other lien known to the law. Neither does it seem that a tax lien should continue after the date of a sale for taxes under a tax judgment. But when the sale is made enforcing the lien the judgment has then spent its force, and the buyer holds through the sale, if at all, and not through a lien. (3) The records of Pemiscot county at the time respondent purchased the land from Bader, did not show that there had been an attempt even to sell the interest of Nat M. Erwin in the land in question, but showing an attempt to sell the interest of Nat M. Ervin in section 18, township --, range 11. Ervin was not in the chain of title and Griffin, the respondent, was not chargeable with notice of conveyance or attempted conveyances not within his chain of title. Tydings v. Pitcher, 82 Mo. 379; Huff v. Morton, 83 Mo. 372; Duckman v. McCollum, 47 Mo. 372. (4) Where the land attempted to be conveyed is not properly described in the granting clause of the deed said deed imparts no notice to a purchaser for value, though by taking the whole instrument together, and reading it as a whole, the land is properly described. Cass County v. Oldham, 75 Mo. 50; Ozark Land & Lumber Co. v. Franks, 156 Mo. 673; Richie v. Griffith, 12 L. R. A. 384. (5) The plaintiff in this case alleged in his petition that no execution had issued out of the office of the circuit clerk, authorizing the sheriff to make the sale of the property in question. This fact was not denied by the defendant in his pleadings, and the plaintiff on the trial of the cause introduced the clerk of the circuit court and showed by him that no such execution had been returned in his office; and that no record of the issuing of such execution was shown. Courts of record speak by their records only, and had execution issued in the case of Collector v. Erwin, and the said execution been lost or destroyed the statute points out how such papers can be supplied, and the only way such supplied papers can be used in evidence. Secs. 4560, 4561, R. S. 1899; Sec. 9304, R. S. 1899; Julian v. Ward, 69 Mo. 153; Beecher v. Deuser, 169 Mo. 159; Carnes v. Alexander, 92 Mo. 660. (6) The recital in the sheriff's deed that execution issued is no evidence of that fact, and is a mere recital which shows that the sheriff had jurisdiction and acted within the scope of his authority if the recitals therein are true; but such recitals may be contradicted either by record or by parol testimony, and the court records must show the matters as recited in the deed. Durette v. Briggs, 47 Mo. 361. (7) The sheriff's deed to Meares is void for the reason that it does not attempt to convey the interest of Nat M. Erwin, the true owner of the land; but conveys the interest of Nat M. Ervin, and the names are not idem sonans. Chamberlain v. Blodgett, 96 Mo. 482; State v. Curran, 18 Mo. 320; Robson v. Thomas, 55 Mo. 581; Simonson v. Dolan, 114 Mo. 176; Greer v. Lumber & Mining Co., 134 Mo. 185. (8) The deed from the sheriff to Meares is void for the reason it is nothing more than a mere skeleton, and fails to show the amount of taxes due for each year for which the sale of the land was made. Guffey v. Oreilly, 88 Mo. 424; Hopkins v. Scott, 86 Mo. 140. (9) The sale made by the sheriff to Meares, if there were no other defect in the sale or deed, should be set aside on a direct proceeding in equity attacking the manner of sale, as this suit was, for the reason that the sheriff did not divide the land into its smallest legal subdivisions or any subdivisions whatever, and did not sell the land in subdivisions, or only so much thereof as was necessary to pay the taxes, interest and costs, as the law demands. Yeaman v. Lepp, 167 Mo. 61; State ex rel. v. Elliot, 114 Mo.App. 562; Corrigan v. Schmidt, 126 Mo. 304; Gordon v. Heckman, 96 Mo. 350.

OPINION

LAMM, P. J.

This cause comes up on an appeal from a judgment of the Pemiscot Circuit Court in favor of plaintiff, finding and adjudging that plaintiff owns in fee simple section 18, township 19, range 11, in that county, containing 640 acres, more or less, and that defendant has no title or interest therein. Further, that a certain sheriff's deed recorded in book A., p. 71, through which defendant claims title, is null and void and is set aside and for naught held.

Counsel do not seem to agree as to the character of the suit. Defendant's counsel contends it is an action under section 650, Revised Statutes 1899, to determine title -- plaintiff's that it is not, "strictly speaking," an action under 650, but "goes further." We construe his position to be that it is in the nature of a bill in equity to set aside a sheriff's sale and deed and clear away a cloud on his client's title, as well as a petition under section 650.

The petition charges that plaintiff owns the...

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