Yankee v. Thompson

• Decision Date: 31 January 1873
• Citation: 51 Mo. 234
• Parties: JACOB YANKEE, Appellant, v. MARY A. THOMPSON, et al., Respondents.
• Court: Missouri Supreme Court

51 Mo. 234

JACOB YANKEE, Appellant,

v.MARY A. THOMPSON, et al., Respondents.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Pettis County Circuit Court.

T. Wright, for Appellant.

I. The deed offered in evidence is in the usual form, duly recorded in the office of the Register, duly acknowledged by the Register, and duly recorded by the Recorder of Pettis. By the statute, such deed is made prima facie evidence of title.

II. The action of the court in refusing to permit plaintiff to take a non-suit, was clearly wrong--especially when it was done with the express view of bringing the case to this court--to try the very question decided; that is, whether the deed was void on its face. The decision of the court in declaring the deed void, was such as necessarily precluded the plaintiff from recovering. (Hageman vs. Moreland, 33 Mo., 86.)

III. The fact that the action was brought in furtherance of the action of the court, under the section for quieting titles, cannot take away this right-- which is a common law as well as a statutory right. This is not a case in which the Court may make an order that plaintiff shall be forever barred and procluded from bringing another suit. That can only be done where plaintiff being summoned makes default, or having appeared shall disobey the lawful order of the court to bring an action to try the title.

IV. Plaintiff when summoned promptly appeared and immediately brought his action to try the title--and in trying his title, he is entitled to the same rights as if he had brought his suit without being required to do so.

Phillips and Vest, for Respondent.

I. The case being under the statute to quiet title the plaintiff could not take a non-suit; this would defeat the very object of the statute. Instead of quieting the title, this practice if allowed, would result in one non-suit after another, at the pleasure of the parties plaintiff, and no end to litigation would be attained.

II. The record is badly made, but it is evident that the Circuit Court intended by its last judgment, to set aside the first judgment entering the judgment of non-suit. Such is the effect of the last entry, and every intendment will be made by this court in favor of the action of the Circuit Court. The judgment is for the right party, and if reversed on account of the irregularities made in entering up the judgment, it would only result in the case being brought back for adjudication upon the same point now presented. (32 Mo., 366; 34 Mo., 338; 36 Mo., 143; especially, 29 Mo., 451.)

III. The deed is void on its face because it does not show that the land described therein was advertised for sale by the Register of Lands, in the manner which the statute required. The deed states that the Register advertised the land in the manner required by law, but this was only his opinion. The deed should show how it was advertised. Abbott vs. Doling, 49 Mo., 302; Large vs. Fisher, 49 Mo., 307.

EWING, Judge, delivered the opinion of the Court.

This action was instituted in the Circuit Court of Pettis County, pursuant to an order of said Court made under Section 53, Article 5 of the practice act relating to the quieting of titles. It is an action of ejectment. The answer is a general denial.

The plaintiff offered in evidence a Tax Deed for the lands in controversy, from Jared E. Smith, Register of Lands, dated November 22nd, 1865, duly acknowledged and recorded, by which the lands appear to have been sold in October, 1863 for the taxes due for 1861. Defendant objected to the reading of this deed on the ground that it is void on its face. The objecttion was sustained and the Deed excluded; whereupon plaintiff took a non-suit with leave to set it aside. The motion to set aside the non-suit and for a new trial having been overruled, the usual judgment was entered. Plaintiff thereupon tendered his bill of exceptions, which was signed and filed, and also an affidavit for an appeal. The record shows that some days subsequently, the motion to set aside the non-suit was re-considered and sustained, and at the same time a full judgment entered, that plaintiff be forever debarred from having or claiming any right or title adverse to the petitioner and those claiming under him. Plaintiff filed motions for a new trial and in arrest of judgment, which were overruled and exceptions duly saved. The cause is here by appeal.

The Act of March 27th, 1861, under which the deed was executed, provides, that the Register of Lands shall execute good and sufficient deeds of conveyance to all persons entitled thereto, conveying the lands or town lots in such deeds, (Section 34, Acts 1860-1, p. 85.) It is further provided, that such deed so executed and recorded shall, without any further notice be received in evidence in all Courts in which the title to any land or town lot purporting to be conveyed by the same shall be brought in question, and such deeds shall be received as prima facie evidence of title in fee simple in the purchaser; and the burden of proving that the title is not in the person holding under the deed, shall be upon those claiming adversely to such deed; and it is further provided that the Register of Lands shall be satisfied upon due examination that all the requirements of the law have been complied with before he executes a deed.

In regard to notice of sale it is provided, that on the first Monday in June annually, next succeeding the returns to be made by the Collector, which he is required to make immediately after the third Monday in November--the Register of Lands shall cause the lands and town lots remaining in his office, on the Delinquent Lists of the preceding year, on which taxes and interest have not been paid, and that may have been bought in or forfeited to the State, to be advertised for sale on the first Monday in October next thereafter, at the place of holding Courts in the respective Counties. The law then proceeds to point out specifically how the notice shall be given. (See Sess. Acts 1860-1, § § 7, 8, 9, p. 81.)

It is but re-affirming well established principles, which have had the sanction of the Courts without exception, to say that the Register of Lands having no general authority to sell lands at his discretion, for the non-payment of taxes; but a special power to sell in particular cases, pointed out specifically in the Statute, these cases must exist or the power does not arise; that the proceeding being by special Act in derogation of common right, the statute itself must be strictly construed against the power; that the proceeding being ex parteand under special authority, nothing can be presumed in favor of the Act, but every requisite of the law must be shown to have been strictly complied with; if the power to sell did not exist the sale of course would be void.

This power only arises on the performance of certain acts specifically pointed out in the law. The omission to give any notice at all, would of course vitiate the sale. Can we give, to the mere recitals in the deed that notice had been given according to law, any effect as evidence of title? The mere assertion of the Register that he...