Charter Oak Land & Lumber Co. v. Bippus

• Decision Date: 22 December 1906
• Citation: 98 S.W. 546,200 Mo. 688
• Parties: CHARTER OAK LAND & LUMBER COMPANY v. GEORGE BIPPUS, Revived v. SARAH A. BIPPUS, Widow, and JAMES E. BIPPUS, only Heir of GEORGE J. BIPPUS, Appellants
• Court: Missouri Supreme Court

98 S.W. 546

200 Mo. 688

CHARTER OAK LAND & LUMBER COMPANY v. GEORGE BIPPUS, Revived v. SARAH A. BIPPUS, Widow, and JAMES E. BIPPUS, only Heir of GEORGE J. BIPPUS, Appellants

Supreme Court of Missouri, Division Two

December 22, 1906

Appeal from Stoddard Circuit Court. -- Hon. James L. Fort, Judge.

Affirmed.

Geo Houck and C. L. Keaton for appellants.

(1) The tax lien on the land for which it was sold under the judgment in defendant's tax deed to Weber and Jones was a first and paramount lien created by public statute and disclosed by public records and related to the date of levy under the law. R. S. 1879, sec. 6717; R. S. 1899, sec. 7570; R. S. 1899, sec 9187; Fleckenstein v. Baxter, 114 Mo. Mo. 495; Boyd v. Ellis, 107 Mo. 401; Board of Trustees v Fry & Woods, 192 Mo. 560. The judgment for the taxes was also a lien and partakes of the nature of and is like a mortgage lien. The tax lien is not merged into the judgment. The judgment is simply the conduit through which the tax lien is enforced against the land. R. S. 1879, sec. 6838; R. S 1889, sec. 7683; R. S. 1899, sec. 9304; Board of Trustees v. Fry & Wood, 192 Mo. 560; Boyd v. Ellis, 107 Mo. 400. The lien is not merged in the judgment and does not expire in three years as in the case of general judgments. Fleckenstein v. Baxter, 114 Mo. 494; Board of Trustees v. Fry & Woods, 192 Mo. 560. (2) The State's lien for taxes, the judgment thereon and the sale under such judgment are all disclosed by public records, and the plaintiff and all those through whom it holds had notice and knowledge of the sale and deed to Weber and Jones. Fleckenstein v. Baxter, 114 Mo. 496. (3) The tax deed to Weber and Jones related back to the sale made by the sheriff, March 6, 1888, and passed the title in fee from that date, under Revised Statuaes 1899, section 9305. Boyd v. Ellis, 107 Mo. 401. (4) E. M. Weber and Ligon Jones became the owners in fee under their purchase at the sheriff's sale and the sheriff's deed, and were such owners at the institution of the suit by the collector, Joseph Howell, the same collector who instituted the first suit and with full knowledge and notice that Weber and Jones were the owners. When they purchased under the judgment in 1888, they "acquired a good title against all prior liens created by (McElroy), but subject to all the valid tax liens to which the property was then or subsequently subject. The statute . . . required the suit . . . to be brought against the owner. The defendant was the then owner. The action could not be brought against (McElroy) who was the owner when the lien accrued, because his title had previously passed to the defendant, or to Metheny, under whom he claimed." Excelsior Springs v. Henry, 99 Mo.App. 453; R. S. 1899, secs. 9302, 9303, 9304, 9305; Burnham v. Manewal, 94 S.W. 520; Land & Lumber Co. v. Franks, 156 Mo. 687; Board of Trustees v. Fry & Woods, 192 Mo. 560. E. M. Weber and Ligon Jones then as the owners by relation of their sheriff's deed to date of sale were the proper and only proper parties defendant to the tax suit under which plaintiffs claim; as they were not made parties defendant, the tax deed to James W. Buchanan conveyed no title whatever, since McElroy had no title to convey. R. S. 1899, secs. 540, 544 and 9303; Excelsior Springs v. Henry, 99 Mo.App. 450; Perkinson v. Meredith, 158 Mo. 462; Wood v. Smith, 193 Mo. 490; Blevins v. Smith, 104 Mo. 590.

Ralph Wammack and M. A. Gorrill for respondent.

(1) Proceedings to enforce tax liens are not strictly in rem, but are to be proceeded with as ordinary actions against real estate. The judgment must be special, and even on personal service, there can be no personal judgment. The suit is against the land in one sense, and the ownership is a matter of secondary consideration. Gitchell v. Kreider, 84 Mo. 472; Milner v. Shipley, 94 Mo. 106; Stewart v. Allison, 150 Mo. 343. (2) The collector, in instituting a suit for taxes, is only obliged to look to the record of deeds, to see who the owner of the property is, and a judgment for taxes against the apparent owner conveys a good title to the purchaser at the tax sale, as against the true owner, whose deed is not recorded at the date of the institution of the tax sale. Vance v. Corrigan, 78 Mo. 94; Watt v. Donnell, 80 Mo. 195; Payne v. Lott, 90 Mo. 676; Evans v. Robberson, 92 Mo. 192; Allen v. Ray, 96 Mo. 547; Simonson v. Dolan, 114 Mo. 176; Nolan v. Taylor, 131 Mo. 228; Weir v. Lumber Co., 186 Mo. 388; Wood v. Smith, 193 Mo. 489. It has been held that a purchaser at a tax sale, who is entitled to a tax deed, but who had not procured and recorded it before the commencement of an action against the same land for the delinquent taxes, of a subsequent year, is not the owner of the land, within the meaning of the Revised Statutes 1899, section 7682, requiring such action to be against the owner of the property. Hilton v. Smith, 134 Mo. 499. (3) Not only was D. W. McElroy the apparent record owner at the time of the second tax suit and sale, but he was the legal owner, as well, for the reason that no deed, at that time, had been executed by the sheriff, conveying McElroy's title to Weber and Jones. It has been uniformly held that a purchaser at an execution sale acquires no title to real estate sold until the deed for it is executed by the proper officers. Land & Lumber Co. v. Franks, 156 Mo. 689; Boyd v. Ellis, 107 Mo. 401.

OPINION

FOX, J.

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 is predicated upon an action instituted by plaintiff under the provisions of section 650, Revised Statutes 1899, to ascertain and define the title as between the plaintiff and the defendant to the northeast quarter of section 25, township 24, range 12 east, situate in Stoddard county, Missouri. 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. This 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 against 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 23rd 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" page 481 of the land records of Stoddard county, Missouri. Ligon Jones and E. M. Weber executed a quit-claim 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, Missouri, 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, page 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, page 168, of the land records of Stoddard county. 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, page 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 ...