Bird v. Sellers

• Decision Date: 31 January 1893
• Citation: 21 S.W. 91,113 Mo. 580
• Parties: Bird, Appellant, v. Sellers
• Court: Missouri Supreme Court

21 S.W. 91

113 Mo. 580

Bird, Appellant,
v.
Sellers

Supreme Court of Missouri, Second Division

January 31, 1893

Appeal from Gentry Circuit Court.--Hon. C. H. S. Goodman, Judge.

Reversed and remanded.

Patton & Shoemaker and J. P. Lewis for appellant.

(1) The court erred in admitting in evidence the tax deed to Holden, for the reason that it was void on its face, and could not set in motion the statute of limitations. First. If void there was nothing upon which the statute (Revenue Laws of 1872, section 221) could operate. Mason v. Crowder, 85 Mo. 527; Hopkins v. Scott, 86 Mo. 140; Kinney v. Forsyth, 96 Mo. 414; Pearce v. Tittsworth, 87 Mo. 635. Second. The taxes for 1871 and 1873 being governed by different laws and rules could not be united in the same proceedings; one should have been proceeded with under the back-tax law, sections 227 to 230, and the other under the law for future levies, sections 182 to 222. Third. The tax deed not only combines in one sale, taxes of 1871 and 1873, governed by different laws, but the taxes upon eight separate tracts are levied, and the lands condemned by one judgment and one sale. There is nothing to show that they were severally condemned for each year separately as required by section 182, nor were the tracts offered for sale "publicly, severally and in consecutive order" as required by section 198. Each tract should have been sold separately for its own tax. Allen v. Buckley, 94 Mo. 158. The court will not infer that the law has been complied with. Yankee v. Thompson, 51 Mo. 234; Hopkins v. Scott, 86 Mo. 144; Kinney v. Forsyth, 66 Mo. 414. It must appear affirmatively upon the face of the deed that the law has been complied with. Large v. Fisher, 49 Mo. 307; Spurlock v. Dougherty, 31 Mo. 176; Moore v. Hams, 91 Mo. 616. (2) The court erred in not permitting plaintiff to show that no assessment, levy, judgment, precept or sale was in fact ever had or made. Abbott v. Lindenbower, 42 Mo. 162; Ewart v. Davis, 96 Mo. 129; Howard v. Heck, 88 Mo. 456. A sale where there was neither levy, assessment nor judgment, would be without due process of law and unconstitutional and void, and a statute making such a sale valid without requiring possession thereunder is, it seems to us, of questionable validity. (3) The court erred in considering the statute of limitations as a defense for the reason that it was not plead. Harper v. Eubanks, 32 Mo.App. 262; Hunter v. Hunter, 50 Mo. 445. (4) The court erred in considering the statute of limitations as a defense and in admitting the tax deed in evidence, and excluding evidence offered by plaintiff for the reason that this three year limitation law, section 221, Act March 30, 1872, was repealed by the Revised Statutes of 1879, before the three years had expired. Revised Statutes, 1879, sec. 3160; Blodgett v. Shafer, 94 Mo. 652. The limitation law having been repealed leaves the law as though it had never existed, and all inchoate rights fail. Butler v. Palmer, 1 Hill N. Y. 15; Green v. Collins, 3 Clifford 494; 8 Meyers Fed. Dec., page 70. The statute of limitations does not create a right until the full time has expired. State to use v. Heeman, 70 Mo. 441. The statute in force at the time of trial prevails. Callaway v. Nolly, 31 Mo. 393; Carson v. Hunter, 46 Mo. 467; Billion v. Walsh, 46 Mo. 492; Gilker v. Bram, 47 Mo. 105. The statute of limitation, where it does not vest the title may be removed by legislative enactment after the full time has expired. Campbell v. Holt, 115 U.S. 620.

McCullough, Peery & Witten for respondent.

(1) The special statute of limitations was a public act. It is only necessary for the party seeking to avail himself of it to state facts which bring his case within the provisions of the statute. This was done fully, and it was unnecessary to mention the statute. Kennayde v. Railroad, 45 Mo. 255; Reynolds v. Railroad, 85 Mo. 94. Besides all these facts could have been proved under the general denial. Hill v. Atterbury, 88 Mo. 118, loc. cit.; Stocker v. Green, 94 Mo. 280; Holmes v. Kring, 93 Mo. 452; Fairbanks v. Long, 91 Mo. 628. (2) The special statute of limitations (section 221) was not repealed by the revenue act of 1877; nor so far as this defendant's rights are concerned has it ever been repealed. All of the proceedings in this case, so far as they concern the tax deed, tax sale, etc., were had while that section was unquestionably in force. Allen v. White, 98 Mo. 55. (3) Neither was section 221 of the act of 1872 repealed by the revision of 1879. It was an act of a general nature, in full force at the time of such revision, and it applies only to tax deeds executed under the law of 1872, and is not in conflict with any provision of the statute of 1879 or of 1889. Revised Statutes, 1879, sec. 3161; Constitution, 1875, sec. 1; Revised Statutes, 1889, sec. 6607; State v. Hickman, 84 Mo. 78; State v. Grant, 79 Mo. 113; State ex rel. v. Frazer, 98 Mo. 426; State v. Heidorn, 74 Mo. 410; Keating v. Hyde, 23 Mo.App. 555; Creason v. Railroad, 17 Mo.App. 111. (4) Even if this special statute of limitations is repealed, it could in nowise affect the rights of this defendant acquired while it was in full force. There is an express statute of this state protecting him. Revised Statutes, 1879, sec. 3150; Revised Statutes, 1889, sec. 6596; State ex rel. v. County Court, 53 Mo. 128. (5) The defendant could not be divested of rights acquired under the law of 1872, and a legislative attempt to do so would be unconstitutional and void. Murray v. Charleston, 96 U.S. 432; Vanhoffman v. Quincy, 4 Wall. 535; Butz v. Muscatine, 8 Wall. 575; State v. Hager, 91 Mo. 452; Bobey v. Siddey, 64 Ill. 447; Grace v. Biddle, 8 Wheat. 1; Bonson v. Kinsey, 1 How. 311; Coffman v. Bank, 40 Miss. 29; Goshen v. Stonington, 4 Conn. 209; Lewis v. Brackenridge, 1 Blackf. (Ind.) 220. (6) But the appellant did not raise the question of the statute of limitations, or of its repeal in the trial court either by objections to the evidence or by instructions, and she cannot, therefore, raise the question here for the first time. Blodgett v. Shaffer, 94 Mo. 672. No instructions having been asked by the plaintiff, there is nothing before this court except the question as to whether the evidence was sufficient to support the finding. Alton v. Arnold, 27 Mo.App. 264; Easley v. Elliott, 43 Mo. 289; Harbison v. School District, 89 Mo. 184; Mead v. Spaulding, 94 Mo. 43; Krider v. Milner, 99 Mo. 145; Gaty v. Clark, 28 Mo.App. 332. (7) The tax deed is in the statutory form. It is almost a literal copy of the deed approved by this court in Allen v. White, 98 Mo. 55. The fact that the taxes for 1871 were combined with those for 1873 in the same sale and same deed does not invalidate the deed. The same proceedings are provided for the collection of each of these years' taxes. The deed is good and valid even for the taxes of 1871. Laws of 1872, sec. 229; Laws of 1872, sec. 230. (8) But even if the addition of the taxes for 1871 to those for 1873 was erroneous, or the sale, or the deed invalid as to the taxes for 1871, that does not in the least affect the validity of the deed, for it is a good deed, in exact statutory form, for the taxes of 1873. The fact that an error may have been made...