Gregg v. Jesberg

Citation113 Mo. 34,20 S.W. 652
PartiesGREGG v. JESBERG et al.
Decision Date13 December 1892
CourtUnited States State Supreme Court of Missouri

1. Rev. St. 1879, § 4731, provides that the tax collector shall begin his sales on the first Monday in November, and continue from day to day as long as there are bidders, or until all the taxes are paid. Section 4735 provides that, when all the property has been offered for sale, and any portion remains unsold for want of bidders, "the collector shall adjourn the sale to some day not exceeding two weeks from the time of adjournment, due notice of which shall be given at the time of adjournment." Held, that where a tax deed on its face discloses that the sale was an adjourned sale of the regular sale, held nearly three months before, and which deed does not recite affirmatively that the adjournment did not exceed the two weeks prescribed by section 4735, such deed is void, not showing a sufficient compliance with the provision of the statute, supra.

2. Plaintiff, a purchaser by a tax deed, is entitled to recover the amount paid for such deed and for taxes afterwards paid by him, even though his deed was void, and even though the defendants, with the intention of paying these taxes, had paid taxes, but by mistake their tax receipt covered other property.

Appeal from circuit court, Buchanan county; O. M. SPENCER, Judge.

Ejectment by Justus C. Gregg against Catharine Jesberg and others. From a judgment directing a verdict for defendants, plaintiff appeals. Affirmed in part and reversed in part.

Porter & Woodson, for appellant. Hall & Pike, for respondents.

GANTT, P. J.

This is an action of ejectment for the recovery of the possession of the east 20 feet of the west 91 2/3 feet of lots 11 and 12, block 43, Robidoux's addition to the city of St. Joseph. Plaintiff's claim is founded upon two tax deeds, one of which is an amendment of the other, executed by the collector of city taxes. In a second count the plaintiff alleges he purchased the land for delinquent taxes for the years 1881, 1884, 1885, and 1886; and if his deed is adjudged insufficient, he asks judgment for the amount of taxes paid by him, with interest, penalties, and costs. The answer is a general denial.

The plaintiff offered in evidence the following city tax deed: "Know all men by these presents, that whereas, the following described real property, viz., east twenty feet of the west ninety-one and two thirds feet of lots eleven and twelve, (11 and 12,) block forty-three, (43,) Robidoux addition, an addition to the city of St. Joseph, Missouri, situated in the city of St. Joseph in the county of Buchanan, and state of Missouri, was subject to taxation for the years 1881, 1884, 1885, 1886; and whereas, the taxes assessed upon the said real property for the years aforesaid remained due and unpaid at the date of the sale hereinafter mentioned; and whereas, the city collector of said city of St. Joseph did, on the 20th day of January, A. D. 1887, by virtue of the authority in him vested by law, at an adjourned sale of the sale begun and publicly held on the first Monday of November, A. D. 1886, the first day on which said real property was advertised for sale, expose to public sale at the office of the city collector, in the city of St. Joseph aforesaid, between the hours of ten o'clock in the forenoon and five o'clock in the afternoon, in conformity with all the requisitions of the statute in such case made and provided, the real property above described, for the payment of taxes, interest, and costs then due and unpaid upon said real property; and whereas, at the time and place aforesaid, said real property could not be sold for the amount of all taxes, interest, and costs thereon; and whereas, the city auditor of the city of St. Joseph, under and by virtue of the direction of the comptroller of the city, bid off said real estate for the city of St. Joseph for twenty-six and eighteen one-hundredths dollars, the amount of said taxes, interest, and penalties; and whereas, afterwards, viz., on the 15th day of March, 1887, J. C. Gregg paid to the city collector twenty-six and eighteen one-hundredths dollars, the amount of all taxes, interest, and costs on said real estate at the time of such payment; and whereas, the city collector gave to said J. C. Gregg a certificate dated March 16, 1887, the day it was issued, describing said real estate so bid off for the city, stating the amount of each kind of tax, interest, and costs for which it was bid off to the city, also the costs of all proceedings thereon, and stating also the amount paid to said city collector by said J. C. Gregg, and the time when said owner of said certificate would be entitled to a deed; and whereas, said certificate was thereupon duly assigned to said J. C. Gregg by the city auditor, and said assignment was noted in the book of sales kept by said auditor; and whereas, two years have elapsed since the first day on which said real property was advertised for sale, and the said property had not been redeemed therefrom as provided by law; and whereas, the city collector of the city of St. Joseph, aforesaid, did, at least four months before the expiration of the time limited for redeeming said real property, publish a notice, as required by the statute in such case made and provided, that, unless said real property was redeemed on or before the day limited therefor, it would be conveyed to the purchaser...

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