Roth v. Gabbert

Decision Date12 June 1894
Citation27 S.W. 528,123 Mo. 21
PartiesRoth, Appellant, v. Gabbert et al
CourtMissouri Supreme Court

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

Spencer & Strop and Huston & Parrish for appellant.

(1) The description in the deeds is the same as that by which the property had been conveyed by the previous owners. It also appears that these parts of lots were inclosed in one inclosure, and used as one property. The property was therefore, properly assessed and sold in a body. 39 Iowa 294; 42 Iowa 85; Cooley on Taxation, 342, and note 1; 493, 494 note 1; O'Neal v. Tyler, 53 N.W. 434, 435, and authorities cited; Black on Tax Titles, sec. 123; Kregelo v. Flint, 25 Kan. 695; Wyman v. Bear, 46 Mich 418; Allen v. Morse, 72 Me. 502; Willy v. Schovel, 9 Ohio 43; Desty on Taxation, 871, notes. (2) The deeds are in the exact form prescribed by the statute (Revised Statutes 1889, page 395, section 1372; Revised Statutes 1889, page 398, section 1381). Deeds following the legislative or statutory form are sufficient. Skinner v. Williams, 85 Mo. 489; Geekie v. Carpenter Co., 106 U.S. 385; Milledge v. Coleman, 47 Wis. 184. The deed sufficiently described the property sold. Skinner v. Williams, 85 Mo. 489; Sparry v. Goodwin, 44 Minn. 207; Reimer v. Newell, 47 Minn. 237; Boyd v. Wilson, 12 S.E. 744; Chouteau v. Hunt, 44 Minn. 173; Geekie v. Carpenter Co., 106 U.S. 385. (3) No sufficient matter was introduced by the defendants as a matter of law to overthrow the tax deed. De Treville v. Smalls, 98 U.S. 517, and authorities next herein cited. (4) The publication of notice of the making of the deed, unless the property was redeemed, is entirely sufficient. Revised Statutes, 1889, secs. 1351, 1369; Hammond v. Johnson, 93 Mo. 198-214. (5) The deeds are conclusive evidence "that the real property conveyed was duly advertised for sale; that the manner in which the assessment, levy, notice and sale were conducted was in all respects, regular," and as the law directed. Sections 1372, 1373 and 1381, Revised Statutes of 1889. De Treville v. Smalls, 98 U.S. 517; Keeley v. Sanders, 99 U.S. 441; Allen v. Armstrong, 16 Iowa 508; Gwynne v. Neiswanger, 18 Ohio 400; Haven v. Heigh, 32 P. 519. (6) A tax deed, like any other instrument, is to be construed as a whole, and if any uncertainty in one part is made certain by another, the deed as a whole is sufficient. Haynes v. Heller, 12 Kan. 382-390. (7) The objection made to the deed that the property in the granting clause of the deed is not described as being in Buchanan county, Missouri, is not well taken. Haynes v. Heller, 12 Kan. 382-390. (8) The plaintiff was entitled to a deed to correspond to the facts, and to that end the second deed was properly executed and admitted in evidence. Duff v. Wilson, 90 Mo. 87. (9) The deeds are conclusive that the land was sold in its smallest subdivision. Abbott v. Lindenbower, 42 Mo. 162.

R. A. Brown and Justus W. Brockett for respondents.

(1) The form of deed, while it is directed by statute, yet it must be amended or added to and such further recitals be inserted as will make plain all the facts. Section 1372, Revised Statutes, 1889; Gregg v. Gesberg, 113 Mo. 34. (2) Notice is an essential prerequisite. Black on Tax Titles, sec. 205; Reeds v. Morton, 9 Mo. 879; Nelson v. Goebel, 17 Mo. 161; Abell v. Cross, 17 Iowa 171; Dubuque v. Wooten, 28 Iowa 571. (3) A sale is an essential prerequisite before the making of a deed, and the property must be sold in the manner provided by statutes of sale. Under our statute the least quantity that will pay the tax only may be sold. Secs. 1354, 1355, Revised Statutes, 1889; Black on Tax Titles, sec. 264; French v. Edwards, 13 Wall. 506. The deed is not conclusive as to essential prerequisites. Black on Tax Titles, secs. 451, 452; McReady v. Sexton, 29 Iowa 56; Abbott v. Lindenbower, 42 Mo. 162; Abbott v. Lindenbower, 46 Mo. 291; Raley v. Quinn, 76 Mo. 263; In re Douglas, 41 La. Ann. 765.

OPINION

Burgess, J.

Ejectment for the possession of the north forty-six and two thirds feet of lots 1 to 5, inclusive, block 4, Carbry Addition to the city of St. Joseph, Missouri. The petition is in the usual form and the answer a general denial. The judgment was for defendants. Plaintiff, after an unsuccessful motion for a new trial, appealed to this court.

Plaintiff claims title under two tax deeds, only one of which will be set out in full, as the only difference in them is in the use of the word "inclusive" in one only, immediately after the description of the parts of the lots described in the deeds. The deed reads as follows:

"Know all men by these presents: That, whereas the following described real property, viz.: The north forty-six and two thirds (46 2/3) feet of lots one (1) to five (5) inclusive, in block four (4), Carbry 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 year A. D. 1889, 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 tracts, lots and parcels of land within said city of St. Joseph, upon which taxes due said city for the year 1889 were delinquent and unpaid, could not be, and were not, advertised for sale on the first Monday in October in said year 1889; and, whereas, the city collector of said city of Saint Joseph, did on the fourth day of November, A. D. 1889, by virtue of the authority in him vested by law, at the sale begun and publicly held on the first Monday in November, A. D. 1889, the first day on which said real property was advertised for sale (which sale so commenced continued from day to day to be publicly held up to and including the fourth day of November, A. D. 1889) expose to public sale at the office of the city collector in the city of Saint Joseph aforesaid, between the hours of 10 o'clock in the forenoon and 5 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, Fred Roth, of the county of Buchanan and the state of Missouri, having offered to pay the sum of nine dollars and two cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said real property for all the north forty-six and two-thirds (46 2/3) feet of lots one (1) to five (5) inclusive, in block four (4), Carbry Addition (this deed is made to correct a certain deed given by the city of St. Joseph to Fred Roth, November 10, 1891), which was the smallest portion bid for, and payment of the said sum having been by him made to said city collector, the said property was stricken off and sold to him at that price; and, whereas, two years have elapsed since the first day on which said real property was advertised for sale, and the said property has 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 or his heirs or assigns. Now, therefore, I, George C. Crowther, city collector for the city of St. Joseph, county and state aforesaid, for and in consideration of the sum of nine dollars and two cents, taxes, interest and costs due on said real property for the year A. D. 1889, to the city collector of the city of St. Joseph, paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said Fred Roth, his heirs and assigns, the real property last hereinbefore described, to have and to hold unto him, the said Fred Roth, his heirs and assigns forever, subject, however, to all rights of redemption provided by law.

"In witness whereof, I, George C. Crowther, city collector of the city of St. Joseph aforesaid, have hereunto subscribed my name and affixed the corporate seal of the city of St. Joseph, this eighth day of April, A. D. 1892.

"[seal]. George C. Crowther,

"Treasurer and Ex-officio City Collector of the City of St. Joseph."

The deeds were duly acknowledged. After reading the deeds in evidence the plaintiff proved the value of the monthly rents and profits of the property. There was a vast amount of extraneous evidence introduced on either side.

Defendants contend that the tax deeds are void upon their face, because the lots are not described as being in Buchanan county; that the property was not sold on the first Monday in October, and no cause is stated in the deeds why it was not sold on that day, and was sold on November 4, 1889; that each lot or part thereof was not sold separately as required by statute; that the description of the property is too indefinite and uncertain, and, if not void upon their face, the deeds are void because of the failure of the collector to offer the property for sale for the least quantity that would have paid the taxes and because of the want of any notice of the tax sale.

The objection to the first deed, dated on the tenth day of November, 1891, upon the ground that the description of the land sold is too indefinite and uncertain, we think well taken, and for that reason that deed should be held void on its face. That deed described the land as the north forty-six and...

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