Bird v. Sellers
| Decision Date | 31 January 1893 |
| Citation | 21 S.W. 91,113 Mo. 580 |
| Parties | BIRD v. SELLERS. |
| Court | Missouri Supreme Court |
4. Defendant's tax deed had at the time been recorded 10 days, but he had not taken possession of the land, which was unoccupied. Held, that he had no vested rights which were affected by the repeal.
Appeal from circuit court, Gentry county; Charles H. S. Goodman, Judge.
Action of ejectment by Sarah Bird against George R. Sellers. Judgment for defendant. Plaintiff appeals. Reversed.
Patton & Shoemaker and John P. Lewis, for appellant. McCullough, Perry & Witten, for respondent.
This is an action of ejectment for the recovery of 40 acres of land in Gentry county, to wit: The N. E. ¼ of the N. E. ¼ section 15, township 63, range 30. The petition is in the usual form. The answer is as follows: Plaintiff filed reply to new matter set up in the answer. Plaintiff showed a regular chain of title from the government of the United States. Defendant and those under whom he claimed had been in the actual possession of the land for more than three years before the commencement of the suit, claiming under a tax deed which was read in evidence over appellant's objections. The cause was tried by the court sitting as a jury, and the finding and judgment were for defendant. No instruction or declaration of law was asked by either party. Plaintiff filed her motion for new trial, which being overruled by the court, she saved her exceptions, and appealed to this court.
The questions involved, and upon which this case is to be determined are: (1) Is the answer of defendant sufficient to raise the question of the special three-years statute of limitations, contained in the revenue law of 1872? (2) Was the special statute of limitations (section 221, Laws 1872) repealed by the revision of 1879, so as to cut off the rights of the defendant and her grantor, if any they acquired, under the tax deed while the special statute was in force? (3) Is the tax deed void on its face, because it shows that the taxes for 1871 were included with those for 1873 in the same judgment, sale, and deed? (4) If the deed is invalid as to the taxes for 1871, can it be upheld and sustained as a good deed under the sale for taxes of 1873?
The question as to whether the three-years special statute of limitations must be pleaded by the party relying upon it is an open one in this state, the present question never having been passed upon by this court. In actions of ejectment, where the general statute of limitations is relied on as a defense for the purpose of showing title, it has been uniformly held that it is not necessary to plead it, and that such defense is competent under a general denial. Stocker v. Green, 94 Mo. 280, 7 S. W. Rep. 279; Fairbanks v. Long, 91 Mo. 628, 4 S. W. Rep. 499, and cases cited. The nearest approach to a decision of the question now under discussion that we have been able to find is in the case of Hill v. Atterbury, 88 Mo. 118, where this special statute of limitations was relied on as a defense, as in this case. Although it was specially pleaded in that case with great particularity, the court held that it was not necessary to do so, as the facts might have been proven under the general issue. We can see no good reason why the same rules of pleading should not apply in this case that apply in all others of like character, where the suit in ejectment and the general statute of limitations are relied on as a defense. It is true that in some instances there is a distinction made by law writers, in cases where the statute of limitations confers absolute title, and in cases where it only operates as a suspension of the remedy, but we know of no distinction where the title to real estate is involved, and the statute is relied on as a defense. The answer sets up all the facts in regard to the execution of the tax deed, its filing and recording, with much precision and detail, and we take it that under the ruling in the case of Hill v. Atterbury, supra, and our system of practice, that that was all or more than was absolutely necessary, as all the facts might have been shown under a general denial. No reason has been suggested to us by appellant's counsel why such is not the case, nor has any authority been called to our attention holding to a different rule. In the case of Nelson v. Brodhack, 44 Mo. 601, Judge Bliss, in speaking for the court, says: Ford v. Wilson, 35 Miss. 490. The general plea put everything in issue, and we can see no reason, on principle, why the plea of the statute should have been required.
As the validity of the tax deed to one George C. Holden, under which defendant claims title, is called in question, we here copy it in full, together with the certificates of record indorsed thereon, which are in words and figures as follows: "Know all men by these presents, that whereas, at the July term, 1874, of the county court of Gentry county, a judgment was obtained in said court in favor of the state of Missouri, against the following described tracts of land, situate in said county of Gentry and state of Missouri, viz.:
Tract No. Acres. Description. Sec. Twp. Rng. Years for which Taxes, interest
taxes are due. costs, and penalties
1 40 N. E. ¼ of N. E. ¼ 15-63-30 1871-73 $ 12 41
2 40 N. W. ¼ of N. E. ¼ 15-63-30 1873 7 59
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