Bender v. Dungan

• Decision Date: 21 December 1889
• Parties: BENDER v. DUNGAN.
• Court: Missouri Supreme Court

12 S.W. 795

99 Mo. 126

BENDER v. DUNGAN.

Supreme Court of Missouri.

December 21, 1889.

TAXATION — FORFEITURE FOR NON-PAYMENT — EJECTMENT.

1. Under Laws Mo. 1872, § 224, relating to the sale of lands forfeited to the state for the non-payment of taxes, and providing that when purchasers of such lands shall become entitled to a deed the same shall be made by the collector, as near as may be, in the form prescribed in the act, and that they shall have the same force and effect, and be governed by all the conditions, provided for tax-deeds, a deed so executed, which does not recite all the proceedings prescribed by law for the purchase of such forfeited lands, is void.

2. Laws Mo. 1872, § 226, relating to the forfeiture of lands for the non-payment of taxes, provides that at the tax-sale of 1875 lands previously forfeited and unsold, and unredeemed, should, after being offered for sale for the amount due thereon, and not sold, be then immediately offered for sale to the highest bidder, and that the forfeitures of such lands as would not sell should be complete. Held, that a private sale, made subsequent to the tax-sale of 1875, of lands forfeited prior to that date, was illegal and void.

3. In ejectment, where the plaintiff's claim is based on a tax-title, and the defendant pleads the general issue, and plaintiff's tax-deeds are excluded, it is proper to refuse an instruction that the plaintiff, though defeated in this action for the recovery of the lands in suit, would nevertheless be entitled to judgment against the defendant for the full amount of all taxes paid by the plaintiff on said land, with the penalty and interest thereon.

Appeal from circuit court, Holt county; C. A. ANTHONY, Judge.

Ejectment brought by John C. Bender against T. C. Dungan. There was judgment for defendant, and plaintiff appealed.

S. C. Irwin and J. D. Crosby, for appellant. T. C. Dungan, pro se.

RAY, C. J.

This is an action of ejectment to recover the described premises, which are situated in Holt county, Mo. The petition is in the ordinary form, and the answer one of general denial. By agreement of parties a jury was waived, and cause tried by the court. A finding was had for defendant, from which plaintiff has appealed. Plaintiff offered in evidence three tax-deeds, — one for the taxes of the year 1873, another for the taxes of 1874, and the remaining one for the taxes of the year 1875, — all of which were, upon the objections of defendant, excluded by the court. No other evidence was offered in the cause. No declarations of law were asked by defendant, and but one on the part of plaintiff, which the court refused, and which will be considered later, in the progress of the opinion.

We may premise that the three several tax-deeds all bear the same date, to-wit, February 28, 1879, and convey the same land, being the 160-acre tract involved in this suit, and that these lands were not sold for delinquent taxes, but were lands forfeited to the state, and sold from the forfeited lists to plaintiff, at private sale, on October 7, 1876. The law, we may observe, does not specifically prescribe the form for this class of deeds, but section 224, Laws 1872, provides that, when purchasers shall become entitled to deeds for real property forfeited to the state, the same shall be made by the collector, as near as may be, in the form prescribed in the act, and that they shall have the same force and effect, and be governed by all the conditions, provided for tax-deeds. It is manifest from this language, and from inspection of the provisions of said section 224, that the form and phraseology of the tax-deed applicable to the sale of lands for delinquent taxes would have to be added to, modified, and altered, in order to be adjusted to and embrace the requirements peculiar to section 224, under which deeds for forfeited lands are authorized. Although the form, other than as above, is not prescribed, yet, as was said in Guffey v. O'Reiley, 88 Mo. 424, the deed must contain apt and appropriate recitals, in...