City of Hannibal v. Heirs & Adm'r of Zachariah G. Draper

• Decision Date: 31 October 1865
• Citation: 36 Mo. 332
• Court: Missouri Supreme Court
• Parties: CITY OF HANNIBAL, Defendant in Error, v. HEIRS & ADM'R OF ZACHARIAH G. DRAPER, Plaintiffs in Error.

36 Mo. 332

CITY OF HANNIBAL, Defendant in Error,

v.HEIRS & ADM'R OF ZACHARIAH G. DRAPER, Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to Pike Circuit Court.

This was an action of ejectment commenced in 1851, in Marion Circuit Court, to recover lots three and four in block twenty-six of the town of Hannibal, as originally laid out by Stephen Glascock. A trial was had in the Circuit Court, which resulted in the non-suit of the plaintiff under the ruling of the court. The case was brought into this court and the judgment reversed. (15 Mo. 634.) On the second trial, the plaintiff as evidence of title, introduced Glascock's plat of the town of Hannibal, filed in the recorder's office April 17, 1836. The lots in question are marked on the plat “church ground.”

The defendants showed in evidence the following state of facts:

In 1841, the town of Hannibal, under its ordinance and by its assessor, assessed the lots in question for town taxes, as the property of an owner unknown. In 1843, the lots were sold by the town collector for these unpaid taxes to Hawkins & Gand, subject to redemption within two years. In the year 1841, the same lots were assessed for State and county taxes, and in 1843 were sold by the sheriff, and Z. G. Draper became the purchaser, and received a deed which was duly executed and recorded. In 1844, Draper redeemed the lots from the sale to Hawkins and Gand, and enclosed them with a fence. He and his heirs have been in possession ever since. In 1844, the lots were assessed to Draper for town-taxes. In 1845, the City of Hannibal was incorporated and these lots were assessed to Draper for city taxes, and so on down to the commencement of this suit. In like manner, the lots were assessed to Draper for State and county taxes during the same time. These taxes were all regularly paid, and the tax receipts produced in evidence. In 1850, Glascock gave a quit-claim deed to Draper of his title to these lots. The consideration of the deed is $100. It did not appear that the town or City of Hannibal ever took possession of said lots, or laid any claim to them up to the commencement of the present suit. The plaintiff, in reply, showed that the assessments for taxes of the lots for the year 1841 were by their numbers only, without further description, and in the name of “owners unknown.”

The court below, on plaintiff's motion and under exception by defendants instructed the jury as follows:

1. The town plat filed in the recorder's office on the 17th day of April, 1836, by Stephen Glascock, with the explanations, marks and designations therein, had the effect when so filed to pass the fee simple to the lots three and four in block twenty-six from said Glascock, and to vest the same in the County of Marion for public use as church property, and by virtue of said plat said Stephen Glascock and all persons claiming under him are estopped from asserting any claim or right to said lots.

2. The act of the Legislature incorporating the City of Hannibal and approved February 21, 1845, had the effect to pass the legal title from the County of Marion to the corporation of the City of Hannibal, and since that act said city is and has been the legal owner of the lots in question in the same way as the county previously owned them, and since said act of incorporation said city has succeeded to all the rights and privileges of the county to the lots in controversy.

3. In order to make the assessment of the lots in controversy for the taxes for the year 1841 legal, it is not necessary that the assessor of Marion county should, in his tax book for that year, describe and designate particularly the lots in question, setting forth in said book, and in the copy of the same returned by him to the county court, the town in which the lots in controversy were situated, together with the street or alley on which said lots were situated, and the size of each of said lots in front and depth; and if the jury believe from the evidence that the lots were not so described by the assessor in his said book, then any sale of said lots made by the sheriff for the non-payment of the taxes for the year 1841 was and is utterly void, and the deed made by the sheriff of Marion county to the defendant passed no title to the defendant and is of now effect.

Defendants asked the following instructions, which were refused, and they excepted:

1. The plaintiff has not shown to the court any title or right of possession which will authorize the jury to find for the plaintiff.

2. That if it shall appear from the evidence that the City of Hannibal did, in the year 1842, cause the lots in question to be assessed and taxed to non-resident owners, and did by her officers and in pursuance of her ordinances, in the year 1843, sell the same as the property of other persons, and that said city did, after said sale up to the date of defendant's deed from Glascock, continue to assess said lots to other persons as owners and receive the taxes thereon, then said plaintiff is estopped from setting her supposed title against said deed from Glascock, or those claiming under it, and in such case the jury should find for the defendants.

The jury rendered a verdict for the plaintiff. A motion for a new trial was made and overruled, and the defendants appealed.

R. M. Field, for appellants.

When this case was before this court on a former occasion, it was held that the plat of Hannibal, as filed in the recorder's office, was sufficient evidence of a dedication of the land in controversy on the part of the proprietor. It is a settled rule of law that an act of dedication to public use is incomplete without acceptance on the part of the public. The acceptance may be by formal act, or, as is more usual, by user and enjoyment. (Ang. Highw. § 132; 2 Greenl. Ev. § 662; State v. Trask, 6 Vt. 355; Bissell v. Railroad Co., 26 Barb. 634; State v. Carver, 5 Strobh. 217; Livaudais v. Municipality, 16 La. 509; David v. Municipality, 14 La. An. 872; People v. Beaubien, 2 Dougs. Mich. 256.) And the levying and collecting of taxes is holden as strong proof against an alleged dedication. (Irwin v. Dixon, 9 How. U. S. 10.)

The present case is plainly distinguishable from that of City v. Gorman (29 Mo. 593). In that case the effort was made to obtain the admitted title of the city through the instrumentality of a tax sale not purporting to convey that title. Here the whole question is whether the corporation ever had any title, and the tax deed is introduced, not as a source of title, but as one of...