Callahan v. Davis

• Decision Date: 20 November 1894
• Citation: 28 S.W. 162,125 Mo. 27
• Parties: Callahan v. Davis et al., Appellants
• Court: Missouri Supreme Court

28 S.W. 162

125 Mo. 27

Callahan
v.
Davis et al., Appellants

Supreme Court of Missouri, Second Division

November 20, 1894

Appeal from Nodaway Circuit Court. -- E. A. Vinsonhaler, Esq., Special Judge.

Affirmed.

J. W. Peery and T. J. Johnston for appellants.

(1) The sale of the land in this case was made by P. J. Keeler, October 4, 1875, and the deed executed by him January 24, 1879. It therefore appears that at the time of the sale P. J. Keeler was collector of the revenue of Nodaway county, by virtue of his office as treasurer of said county; and at the time he executed the deed P. J. Keeler was collector of said county by virtue of his appointment by the county court. When it is remembered that he was not making the sale as treasurer, but as collector; that the official functions he was then discharging related to his duties as collector of the revenue and not as treasurer; and further, that no officer is by law required to recite the source of his official authority, or the tenure by which he holds the office in any official act or document, but that courts take judicial notice of the powers, tenure, duties, and authority of public officers, and that every presumption is indulged in favor of the regularity of their proceedings, and that courts always presume that they act within the scope of their official authority, we do not see how this court can hold this deed invalid upon the point under consideration without in effect overruling all of the following cases: State ex rel. v. Gates, 67 Mo. 139; Becker v. Washington, 94 Mo. 375; Owens v. Baker, 101 Mo. 407; Mitchner v. Holmes, 117 Mo. 211. "The presumption is that one who has proved to have acted in an official capacity possessed the necessary and proper authority." Lawson on Presumptive Evidence, rule 13, page 47, et seq. and cases cited. "The presumption is that public officers do as the law and their duty requires them." Lawson on Presumptive Evidence, rule 14, page 53, et seq. and cases cited. Wickershorn v. Woodbeck, 57 Mo. 59. (2) Our courts will take judicial notice, as part of the history of legislation in this state, that clerks were also ex officio recorders, and that signing himself as recorder indicated that he was circuit clerk. Owen v. Baker, 101 Mo. loc. cit. 413; Becker v. Washington, 94 Mo. loc. cit. 380; Wetherbee v. Dunn, 32 Cal. 106; Lanfear v. Mastier, 89 Am. Dec. 182; Spear v. Ditty, 9 Vt. 282; Sheldon v. Coates, 10 Ohio 278; 1 Rice on Evidence, p. 25. (3) The court erred in holding that the pendency of another action theretofore instituted by the plaintiff against the same defendants, to recover the same premises, did not abate this one nor prevent plaintiff from prosecuting the same. This objection not appearing on the face of plaintiff's petition in this case, was pleaded in defendant's answer. Arthur v. Richards, 48 Mo. 289.

P. L. Growney for respondent.

(1) An officer acting officially on paper should designate his office as it is known to the law. Spurlock v. Dougherty, 81 Mo. 171; Robinson v. Jones, 71 Mo. 582; State v. Hays, 78 Mo. 606; Howard v. Heck, 88 Mo. 456. (2) The tax deed is void on its face. Kinney v. Forsythe, 96 Mo. 414; Ewart v. Davis, 76 Mo. 129; Mason v. Crowder, 85 Mo. 526; Duff v. Neilson, 90 Mo. 93. Being void on its face the limitation statute does not apply. Mason v. Crowder, 85 Mo. 526; Callahan v. Davis, 90 Mo. 78.

OPINION [28 S.W. 163]

[125 Mo. 29] Burgess, J.

This is an action of ejectment for the recovery of the possession of the east half of the southeast quarter of section 14, township 63, range 35, in Nodaway county, Missouri. The petition is in the usual form and the answer a general denial, except that it admitted possession in defendants and alleged that on the twenty-eighth day of May, 1881, the plaintiff instituted a suit in ejectment against the same defendants to recover the same land, and which suit has been twice tried, and was still pending in said court undetermined; and, as a special defense, that on the twenty-fourth day of January, 1879, the collector of revenue of said county, under a sale theretofore made on the fourth day of October, 1875, under a judgment of the county court, for taxes, made and executed a deed to Talbott and Morehouse, which deed was in due form, acknowledged and recorded in the recorder's office in said county on the twenty-fifth day of January, 1879; and conveyances from said Talbott and Morehouse and Mrs. Belle Talbott, all in due form and of record, to the defendants, conveying said land to them; then actual possession of said land from and after the first day of December, 1881, until the filing of their said answer, and alleging that said tax deed was in statutory form, properly executed and recorded in said county more than three years next before the commencement of plaintiff's said suit; and that by virtue [125 Mo. 30] of section 221, article 1, chapter 118, 2 Wagner's Statutes of Missouri, the plaintiff's action was barred.

The case has been twice before this court and will be found reported in 90 Mo. 78, 2 S.W. 216 and 103 Mo. 444, 15 S.W. 433.

It was tried the last time upon the following agreed statement of facts, which, after the formal part, shows that defendant's first amended answer was filed June 18, 1888, setting forth as a defense a general denial, and then proceeds as follows:

"First. Another action pending by the same plaintiff, against the same defendant, for the same land, commenced on the twenty-eighth day of May, 1881, and still pending and undetermined in this court.

"Second. That the defendants were, on the first day of December, 1881, but never prior thereto, and still are, in possession of said premises, claiming the same through mesne conveyances from Perry H. Talbott and Albert P. Morehouse, who claimed...