Chrisman v. Hough

• Decision Date: 06 July 1898
• Court: Missouri Supreme Court
• Parties: CHRISMAN v. HOUGH et al.<SMALL><SUP>1</SUP></SMALL>

47 S.W. 941

146 Mo. 102

CHRISMAN v. HOUGH et al.¹

Supreme Court of Missouri, Division No. 1.

July 6, 1898.

TAX DEEDS — VALIDITY — CERTIFICATES OF PURCHASE — INDORSEMENTS — TAX TITLE PROCURED BY JUNIOR INCUMBRANCER — EFFECT ON SENIOR LIENS.

1. The Kansas City charter of 1875 authorized the city treasurer, who was ex officio city collector, to execute a tax deed as collector after a specified time from the tax sale. A sale was made, and a tax certificate duly issued by the treasurer as collector. Afterwards the charter of 1889 went into effect, which changed the procedure only in that the treasurer was to execute the tax deed as treasurer. Held, that the tax deed afterwards issued by the treasurer as such was valid.

2. Where a purchaser at a tax sale transfers the certificate of purchase to another by a mere indorsement, the latter is authorized in afterwards writing a formal assignment above the indorsement.

3. A junior trust deed contained a covenant by the grantors to pay all taxes, and authorized the grantee, on their failure so to do, to pay them, for which he was entitled to a lien. Held, that where the grantors failed to pay the taxes, and such mortgagee purchased the property at tax sale, he thereby acquired no title, as against the senior incumbrancer, but only the right to be reimbursed.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by William Chrisman against Samuel B. Hough and others to foreclose defendants' equity of redemption in certain property. From a decree for plaintiff, defendants Hough and another appeal. Reversed.

On the 17th of October, 1885, Charles W. Chase, who was the owner of lot 17, block 2, E. L. Brown's subdivision, Kansas City, by deed of that date, in which his wife joined, conveyed said lot to W. H. Whiteside, trustee, to secure the payment of a promissory note of the said Chase, of the same date, payable to H. L. Jamison six months after date, for the sum of $500, with interest from date at the rate of 10 per cent. per annum. Afterwards this promissory note was assigned by indorsement to the plaintiff, who brings this action to foreclose said deed of trust. This deed of trust was duly acknowledged and recorded on the 22d day of October, 1885. Afterwards, on the 6th day of February, 1886, the said Chase and wife by their deed of that date conveyed the premises to S. F. Scott to secure the payment of a promissory note dated the 15th of December, 1885, payable to George Pasfield two years after the date thereof, for the sum of $2,500, with 9 per cent. interest, payable semiannually. This deed of trust was duly acknowledged, and recorded on the 15th of February, 1886. Afterwards, on the 20th of November, 1890, Theodore S. Case, city treasurer of Kansas City, by deed of that date, duly acknowledged, and recorded on the 8th of December, 1890, in pursuance of a sale made on the 4th of February, 1889, which sale was begun on the first Monday in November, 1888, by the city collector, for delinquent taxes for the year 1888, conveyed the premises to Leonil Moise. Afterwards, on the 25th of January, 1892, the said Moise, by quitclaim deed of that date, duly acknowledged, and recorded on the 26th of January, 1892, conveyed the premises to S. B. Hough; and on the same day Chase and wife, by their quitclaim deed of that date, recorded also on the 26th of January, 1892, released all their interest in the premises to the said Hough. The suit was instituted on the 17th of February, 1894. Hough, Pasfield, and Whiteside are made co-defendants with Chase and wife in the action. Hough and Pasfield alone answered; setting up title under the tax deed aforesaid, and averring that the title of Hough is held for the use and benefit of Pasfield. Issue was joined by reply. The issues were found for the plaintiff, and decree rendered in his favor against all the defendants, foreclosing their equity of redemption, from which the defendants Hough and Pasfield appeal.

New & Palmer for appellants. Milton Campbell, for respondent.

BRACE, P. J. (after stating the facts).

1. It is contended for respondents that the decree should be sustained on the ground that the tax deed is a nullity, for the reason that Case, the city treasurer, had no authority to execute it. Under the charter of Kansas City of 1875, the city treasurer was ex officio city collector (Sess. Acts 1875, p. 212, § 20), whose duty it was to make sale of real estate for delinquent taxes, and upon such sale to give the purchaser a certificate of purchase, which was assignable by indorsement (Id. p. 234, § 53). Real estate sold under the provisions of this act was redeemable "at any time within two years from the first day on which such real property was advertised for sale." Id. p. 235, § 55. If not redeemed within that time, it became the duty of the city collector, on presentation to him of the certificate of purchase, to execute a deed to the purchaser, his heirs or assigns, in the form therein prescribed, under the seal of the city, and attested by him as city collector. Id. §§ 63, 64. The sale was made and the certificate of purchase issued under the provisions of this law by Benjamin Holmes, who was then city treasurer, and ex officio city collector. Afterwards, on the 9th of May, 1889, the freeholders' charter went into effect, whereby the charter of 1875 was superseded. In the new charter the provisions of the old charter in regard to the sale of lands for delinquent taxes, and the execution of deeds therefor to the purchasers, were substantially re-enacted; the city treasurer remaining, as before, the collector of the taxes, without any official designation as such; and as such treasurer he was required to perform the same duties as before, and, among them, to execute tax deeds to purchasers, in like form, under the seal of the city, attested by him as city treasurer. Charter 1889, §§ 57, 58. And so the deed in question was executed, under the seal of the city, by Case, then city treasurer, as such, when, under the former law, had it been in force, it would have been executed by him as city collector;...