Burkham v. Manewal

• Decision Date: 30 March 1906
• Citation: 195 Mo. 500,94 S.W. 520
• Parties: BURKHAM v. MANEWAL.
• Court: Missouri Supreme Court

94 S.W. 520

195 Mo. 500

BURKHAM v. MANEWAL.

Supreme Court of Missouri, Division No. 1.

March 30, 1906.

1. TAXATION — COLLECTION OF TAXES — DEFECTS IN PROCEEDINGS—EFFECT ON TITLE OF PURCHASER.

Where, in a suit for the collection of taxes on real estate, the record owner of the land was not named as defendant, no title passed on execution sale under the judgment rendered.

2. SAME—NOTICE OF PROCEEDINGS—NAMES— INITIAL.

Where, in a suit for taxes, notice by publication is addressed to the defendant by the initials of his Christian name only, while the record title to the land is in his full name, the court does not acquire jurisdiction, and judgment by default on such notice is void.

3. SAME—QUIETING TITLE—LIMITATIONS.

Where an action to quiet title to unoccupied lands against a tax title was commenced within five years of the passage of Rev. St. 1899, § 650, authorizing one holding the legal title to land to maintain a suit to quiet his title his right of action is not barred, though the sale for taxes was 20 years previous to the commencement of the action.

4. SAME—TIME TO SUE — STATUTORY PROVISIONS.

Rev. St. 1899, § 9319 (Acts 1871-72, p. 130), declaring that any one putting a tax deed on record will be deemed to have set up such a title to the land as will enable one claiming to own the same to maintain a suit for the possession thereof, does not apply to a sheriff's deed under special execution to enforce a judgment in a back tax suit.

5. SAME—LIEN FOR TAXES PAID.

One paying taxes on land to which he claims title under a void tax deed, is not entitled on the deed's being set aside to a lien against the owner for the taxes paid.

6. SAME—TAX DEED—SETTING ASIDE—STATUTORY PROVISIONS.

Where judgment in a back-tax suit was rendered before the taking effect of Acts 1903, p. 254, declaring that no one shall maintain a suit to set aside a tax deed unless in his petition he offers to refund the taxes paid by defendant, the act has no influence on the rights of the parties in the case.

Appeal from Circuit Court, Madison County; Robert A. Anthony, Judge.

Action by Charles B. Burkham against George Manewal. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

David M. Tesreau, for appellant. John C. Brown, for respondent.

VALLIANT, J.

This is a statutory proceeding under section 650, Rev. St. 1899, to quiet title to certain real estate in Madison county. It is wild land and has never been occupied. The plaintiff's title comes in a direct line from the United States through patents and subsequent deeds duly recorded. The defendant's title comes through sheriffs' sales under special executions on judgments for delinquent taxes. The land lies in sections 5, 6, and 7, township 31, range 7, E. John Collins purchased from the United States that part of the land in question that lies in sections 5 and 6, and he and his wife by deed dated January 23, 1860, recorded March 8, 1860, sold and conveyed to plaintiff, Charles B. Burkham. So the title stood on the record on July 15, 1882, when a suit was filed in the circuit court of the county in the name of the state at the relation of the collector of revenue against John Collins and John Burkham defendants to enforce against the land a lien for back and delinquent taxes to the amount of $78.82 alleged to be due on the land. There was no service of summons, but there was an order of publication directed to the defendants named in that suit, there was no appearance of defendants, judgment decreeing the lien for taxes as prayed was rendered by default, and special execution awarded. Under that execution the land was exposed to public sale, and struck off to John W. Dunaway to whom the sheriff executed a deed which was duly recorded. Whatever title passed to Dunaway at that sale has since passed, and is now held by the defendant Manewal in this suit. So much of the land in suit as lies in section 7, was purchased from the United States by George Hake. By deed dated January 31, 1860, recorded March 7, 1860, George Hake and wife conveyed it to Charles B. Burkham, the plaintiff. So the title to that part of the land stood on the record on January 17, 1878, when a suit was filed in the circuit court in the name of the state at the relation of the county collector plaintiff against C. B. Burkham defendant to subject the land to a lien for taxes for the years 1868, 1872, 1873, and 1874 amounting to $20.87 alleged to be due on the land. There was no service of summons in that case, but there was an order of publication in which the defendant therein was described as C. B. Burkham. There was no appearance entered, and judgment by default was rendered declaring the lien established, and awarding special execution thereon. Under that execution the land was exposed to public sale, and it was struck off to certain parties for the sum of $5, to whom the sheriff executed a deed dated March 29, 1879, which was afterwards, to wit, September 11, 1880, duly recorded. Whatever title the purchasers at that sale acquired has passed by subsequent deeds and is now held by the defendant in this suit. The plaintiff has paid no taxes on the land since 1867, the defendant since his purchase has paid taxes on the land lying in sections 5 and 6 to the amount of $35.35, and on that lying in section 7 to the amount of $20.74. Plaintiff makes no offer to refund the taxes paid by defendant or by those under whom he claims. The decree of the court was to the effect that the land belonged to the plaintiff and that defendant had no interest in it, from that judgment comes this appeal.

1. Appellant does not very seriously contend that any title passed by the sheriff's sales under the special executions in the back tax suits. There is really no room for such a contention. When those tax suits were instituted the lands stood on the record in the name of Charles B. Burkham, there was...