Allen v. White

• Decision Date: 18 February 1889
• Citation: 10 S.W. 881,98 Mo. 55
• Parties: ALLEN v. WHITE.
• Court: Missouri Supreme Court

10 S.W. 881

98 Mo. 55

ALLEN v. WHITE.

Supreme Court of Missouri.

February 18, 1889.

1. TAXATION — FORM OF TAX DEED.

Although the form prescribed for tax deeds by 2 Wag. St. Mo. 1872, p. 1205, § 217, is prepared for a single tract, it is no objection to the admission of a tax deed in evidence that it contains 10 different tracts, in 10 different sections, in tabulated and abbreviated form, when no recital or statement prescribed by the form is omitted, and the abbreviations used are expressly authorized by statute. Id. p. 1212, § 240.

2. STATUTE OF LIMITATIONS — ADVERSE POSSESSION.

A tax deed was dated and acknowledged December 5, and recorded December 7, 1877, covering land sold October 4, 1875, under a judgment rendered July, 1875, for the taxes of 1874. Defendant purchased from the tax deed holder in 1881, and his deed was recorded August 27, 1881; and April, 1882, defendant went into possession of the land, which was wild prairie land. Ejectment was brought August 2, 1884. Neither plaintiff, nor any other person except defendant, has been in actual possession. Held, that the action, not having been commenced within seven years after the record of the tax deed, was barred by the statute of limitations. 2 Wag. St. Mo. 1872, p. 1207, § 221.

3. SAME — EXCEPTIONS.

The statute excepts from the limitation of three years, contained in 2 Wag. St. 1872, p. 1207, § 221, cases "where the taxes have been paid, or the land was not subject to taxation, or has been redeemed as provided by law." The plaintiff did not offer any evidence to bring himself within the exception, except records showing that the land was again sold, October 2, 1876, for the taxes of 1875, and was again purchased by the same purchaser. Held proper to exclude the evidence, as it had no tendency to bring plaintiff within any of the exceptions provided by the statute.

4. SAME.

The tax law of March 30, 1872, under which the proceedings were had, was amended, and some of the sections repealed, by the revenue acts of April, 1877; but section 221, prescribing a three-years limitation, was neither amended nor repealed by said acts.

Appeal from circuit court, Harrison county; CHARLES S. GOODMAN, Judge.

Ejectment by John M. Allen against William W. White. The court, trying the case without a jury, refused the following instructions, requested by plaintiff: "(2) The back-tax law of 1874, in the Acts of 1874, having repealed that portion of the revenue law of 1872, under which said lands were sold for back taxes in 1875, before the said Joseph F. Bryant had received his tax deed, and before said tax deed was filed for record, said Bryant, or the defendant holding under him, cannot set up the three-years statute of limitation contained in the revenue laws of 1872. (3) If the court believe from the evidence that the said Bryant, or the defendant, did not take actual possession of said lands until April, 1882, the statute of limitation would not begin to run in their favor until they took actual possession of said lands. Judgment for defendant. Plaintiff appeals."

D. J. Heaston, for appellant. Alvord & Woodruff, for respondent.

BRACE, J.

This is an action in ejectment to recover possession of the N. E. ¼ of the N. E. ¼ of section 18, township 66, range 29, in Harrison county. The defendant obtained judgment, and the plaintiff appeals.

1. The petition was in the usual form. The answer was a general denial, with a special plea of the three-years statute of limitations, under section 221, 2 Wag. St. 1872, p. 1207. It is conceded that the title is in the plaintiff, unless it has been divested by a tax deed to Joseph F. Bryant put in evidence by the defendant, and under which he claims. To the introduction of this deed in evidence the plaintiff objected, and its admission by the court he assigns as error, for the reason that it is not in the form prescribed by law, in that it contains 10 different tracts of land, in 10 different sections, and all set out in tabulated and abbreviated form. The form prescribed for tax deeds at the time this one was made is contained in section 217, 2 Wag. St. 1872, p. 1205. The deed is too long to be inserted in this opinion, but upon a careful comparison of it with that form, not a single recital or statement is found to have been omitted. Consequently the authorities cited by plaintiff's counsel in support of this objection are not in point, for this deed is not defective in any of the particulars to which the deeds in the cases cited were subject, nor is it obnoxious to objection for any similar defect. The form, as it appears in the statute, is prepared for a single tract, but it does not follow that more than one tract cannot be included in the same deed. On the contrary, the preceding section (216) of the same act expressly authorizes the collector to "include as many tracts or lots" in one deed of conveyance as may have been purchased by one person, at the same sale, for the same year's taxes, as was the case here; and every abbreviation used in the deed is expressly authorized by statute, (section 240, p. 1212, Id.) while the tabulated form used in the deed simply adds to its clearness and conciseness. When a form is prescribed by statute, it must be substantially followed. It cannot and need not always be literally followed, as the circumstances of the cases to which it is applicable are sometimes necessarily somewhat variant, and no form can be prescribed which in every case can be perfected by simply filling the blanks. The deed, being substantially in the form prescribed by the statute, and complying with all its essential requirements, was "prima facie evidence that each and every act and thing required to be done by the provisions of the act had been complied with," (section 219, p. 1206, Id.,) and the court committed no...