Charter Oak Land & Lumber Co. v. Bippus

• Decision Date: 22 December 1906
• Citation: 200 Mo. 688,98 S.W. 546
• Court: Missouri Supreme Court
• Parties: CHARTER OAK LAND & LUMBER CO. v. BIPPUS et al.

98 S.W. 546

200 Mo. 688

CHARTER OAK LAND & LUMBER CO. v. BIPPUS et al.

Supreme Court of Missouri, Division No. 2.

December 22, 1906.

TAXATION—DEEDS—SUCCESSIVE DEEDS.

Lands were sold for taxes for the years 1879 to 1885, but no deed was executed for several years thereafter, and prior to the execution of the deed the lands were assessed against the original owner for the taxes of 1888, and, pursuant to an action against him, sold and a deed executed to the purchaser. Held that, as between one claiming under the first tax deed and one claiming under the

second, the first party had title, though the collector and purchaser knew at the time of the second sale of the prior judgment and the sale thereunder.

Appeal from Circuit Court, Stoddard County.

Action by the Charter Oak Land & Lumber Company against George Bippus. Revived against Sarah A. Bippus and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This cause is now pending in this court upon appeal from a judgment of the circuit court of Stoddard county in favor of the plaintiff and against the defendant. The judgment in this cause is predicated upon an action instituted by plaintiff under the provisions of section 650, Rev. St. 1899, to ascertain and define the title as between the plaintiff and the defendant to the N. E. ¼ of section 26, township 24, range 12 E., situate in Stoddard county, Mo. The land in controversy is wild unimproved timber land, and the legal title is alone before the court for determination. The record discloses that there is no dispute as to the common source of title. Both parties claim through execution sales enforcing tax judgments against David W. McElroy, who was the owner of the land. The history and origin of the deeds through which both respondent and appellants claim title to this land may thus be briefly stated: On September 10, 1887, a judgment was rendered against David W. McElroy, owner of the land now in controversy, for the taxes of said land for the years 1879 to 1885, inclusive, and special execution was issued upon such judgment November 1, 1887, returnable to the March term, 1888. The land was levied upon December 16, 1887, and sold on March 6, 1888. E. M. Weber and Ligon Jones became the purchasers of the land at such sale. However, the record discloses that the sheriff did not execute a deed to the purchasers, E. M. Weber and Ligon Jones. After the term of the sheriff who made such sale had expired, and he had removed from the state, the then acting sheriff on the 16th day of September, 1891, executed as the successor to the sheriff in office at the time the sale was made, a deed to the land in controversy. This deed was acknowledged on the 23d day of September, 1891, in open court at the September term, 1891, of said court. This deed was not recorded until the 16th day of November, 1891, in book Y, p. 481, of the Land Records of Stoddard county, Mo. Ligon Jones and E. M. Weber executed a quitclaim deed dated February 20, 1902, conveying all their right, title, and interest to the land in controversy to George Bippus, the original appellant in this cause. It is under these conveyances that the appellants claim title. The taxes on this land were not paid for the years 1887 and 1888, and, David McElroy still being the record owner of said land, the collector, for the purpose of enforcing the state's lien for such taxes of 1887 and 1888, brought a suit against said McElroy, returnable to the March term, 1891, of the circuit court of Stoddard county, Mo., and a judgment was rendered on March 1, 1891, for the taxes heretofore stated, for the years 1887 and 1888, and execution was issued upon such judgment for the purpose of enforcing the lien therein declared, returnable to the September term, 1891, and said land was sold as the property of David W. McElroy on September 17, 1891. At such sale James W. Buchanan purchased the land. The sheriff accordingly on September 17, 1891, executed a deed conveying to him the land sold. This deed was acknowledged in open court on the 23d day of September, 1891, and was placed on record September 26, 1891, in book 2, p. 4, of the Land Records of Stoddard county. On September 28, 1900, James W. Buchanan and wife and John R. Reddick and wife, by warranty deed, conveyed the land in controversy to T. E. Griesa. This deed was recorded September 29, 1900, in book 33, p. 168, of the Land Records of Stoddard county, Mo. On July 14, 1901, T. E. Griesa and wife, by warranty deed, conveyed the land in controversy to the respondent in this cause, the Charter Oak Land & Lumber Company, which deed on the 27th day of July, 1901, was recorded in book 15, p. 589, of the Land Records of said county. It is under and by virtue of these conveyances that plaintiff claims title to the land in controversy. At the close of the evidence the court gave the following declaration of law at the request of the defendant: "The court declares the law to be that, if the court find and believe from the evidence that the defendant Geo. Bippus holds and claims title through and by virtue of a sale of the land in controversy under a proceeding to foreclose and enforce the lien for unpaid taxes assessed against said land against the record owner thereof, then the court will find that defendant's claim and title relates at least to the date of judgment in that behalf and constitutes a superior and paramount title. If the court finds that plaintiff's title has emanated from proceedings subsequent thereto, and said proceedings for delinquent taxes being manifested by public record, then the court will find that plaintiff, and all others taking title subsequent to said judgment, takes with notice, and the court will find for the defendant Bippus, and enter a decree accordingly." The abstract of record filed by appellants and now before us discloses that after the giving of such instruction the court in the first instance found for the defendants. Subsequently this finding was changed by the court, and a finding was made for the plaintiff, and a decree and judgment entered accordingly. A timely motion for new trial was filed by the defendant and by the court overruled and from the judgment and decree entered in the cause this appeal was in due time and proper form prosecuted to this court, and the record is now before us for consideration.

Geo. Houck and C. L. Keaton, for appellants. Ralph Wammack and M. A. Gorrill, for respondent.

FOX, J. (after stating the facts).

It is apparent from the record in this cause that there is but one question to be determined, and that is which of these parties to this proceeding acquired title to the land in controversy under the tax judgment as heretofore indicated in the statement of this proceeding acquired title to the land in controversy under the tax judgment as heretofore indicated in the statement of this cause. The two conflicting contentions of appellants and respondent in this proceeding may thus be briefly stated: On the part of the appellants it is contended that the deed executed by J. R. Barham, sheriff of Stoddard county, Mo., as successor to D. W. Sanford, on September 16, 1891, predicated upon a judgment for taxes against David W. McElroy on the 10th day of September, 1887, and a sale in pursuance of said judgment made on the 6th day of March, 1888, conveyed the title to the land in controversy to E. M. Weber and Ligon Jones, which was by them subsequently conveyed to the appellants in this cause. On the part of the respondent it is insisted that the taxes of 1887 and 1888, not having been paid, constituted a lien upon the land in controversy; that the collector instituted a suit to enforce the lien of the state, and that he had the right to maintain a proceeding to enforce such lien for such taxes; that at the date of the commencement of the suit the land in controversy was assessed in the name of David W. McElroy, and that he was at the time of the institution of the suit the record owner and the only proper party against whom such proceeding could be maintained for the enforcement of the state's lien for the taxes of 1887 and 1888. It is also insisted that the judgment rendered on April 6, 1890, against McElroy for the taxes of 1887 and 1888 was a proper judgment, and that E. M. Weber and Ligon Jones, not having received a deed for said land under their purchase in pursuance of the tax judgment of 1887, were not either proper or necessary parties to the proceeding to enforce the state's lien for the taxes of 1887 and 1888, and said Weber and Jones not having received any deed to said property under their purchase either at the time of the commencement of the suit by the collector for the taxes of 1887 and 1888, nor at the time of the rendition of the judgment or the sale in pursuance of the judgment, and not having their deed recorded until the 16th day of November, 1891, the sale of the land in controversy under the tax judgment of April 6, 1890, and the deed executed in pursuance of such sale to James W. Buchanan, conveyed to him the legal title to the land in controversy, and, his title through mesne conveyances having been lodged in the plaintiff in this cause, the judgment of the trial court was strictly in accord with the law applicable to this cause.

The legal propositions disclosed by the record before us necessitates a brief review of the law applicable to proceedings by the state to enforce its lien for taxes against the land upon which such taxes have been assessed. A proceeding to enforce the lien of the state for taxes is not one strictly in rem, but is fully recognized by reason of the nature and character of the proceeding, the judgment authorized to be entered as one in the nature of an action in rem, as was said in the case of Hilton v. Smith, 134 Mo., loc. cit. 508, 33 S. W. 465: "The statute requires the suit to be brought against the owner of the land charged with the lien of the state for taxes. For this...