Dalton v. Fenn

• Decision Date: 31 March 1867
• Citation: 40 Mo. 109
• Parties: PAULINE DALTON, Respondent, v. MARTHA FENN AND THOMAS J. MCNAIR, Appellants.
• Court: Missouri Supreme Court

40 Mo. 109

PAULINE DALTON, Respondent,

v.MARTHA FENN AND THOMAS J. MCNAIR, Appellants.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Land Court.

This was an action of ejectment for a tract of land in the county of St. Louis, brought by Pauline Dalton, respondent, against the appellants.

The plaintiff introduced and read in evidence--1. Deed dated September 9, 1851, from William S. Hereford and wife to John Dalton, the husband of the plaintiff; 2. Deed dated January 8, 1855, from Dalton and Pauline, his wife, to one William Fulton; 3. Deed of trust dated same, January 8, 1855, from said William Fulton to the trustees of said John Dalton; 4. Deed dated August 12, 1865, by said trustees to the plaintiff, Pauline Dalton--this deed was acknowledged and recorded September 22, 1865.

Plaintiff then introduced as a witness the said William Fulton, who stated: “I know the real estate described in the petition; I formerly had possession of it; the defendants had possession of it on the 21st day of September, 1865.”-- Here the plaintiff closed.

Defendants introduced as a witness William Hardy, who stated that “on the 19th day of October, 1859, James McDonough was collector of the revenue for St. Louis County; at that time I was his deputy. I know the certificate dated October 19, 1859; it was issued by me at its date to Thomas J. McNair. I know the handwriting of John F. Houston, who in the years 1860 and 1861 was Register of Lands in this State. The signature to the deeds dated respectively November 12, 1860; October 28, 1861, and October 28, 1861, are genuine. I never saw him write, but the signature looks like that in other deeds purporting to be signed by him.”

Defendants then read in evidence-1. Tax certificate, in the usual form, dated October 19, 1859, from said McDonough, as collector of the State and county revenue for the county of St. Louis, to the said McNair, for the property in question, the same having been sold at a sale commenced on the first Monday in October, 1859, for the taxes for the year 1858. On this certificate was endorsed a transfer or assignment, for value received by said McNair, to the defendant Martha Fenn, dated January 3, 1861. These were recorded in the Register's office, October 28, 1861. 2. Deed from the Register to the said McNair dated November 12, 1860, recorded in the Register's office and filed for record in St. Louis county November 7, 1861, but which deed was not acknowledged by the Register. 3. Deed from the Register to said McNair, dated October 28, 1861. This deed was also recorded in the Register's office, but was neither acknowledged nor recorded in the county of St. Louis. 4. Deed from same to same, dated October 28, 1861; recorded in the Register's office and filed for record in St. Louis county November 7, 1861, but not acknowledged by the Register.

The bill of exceptions states that “the plaintiff objected to the said certificate and deeds at the time they were offered in evidence, but that the court admitted the same subject to the objection, and would declare the effect of the same.”

William Fulton, for the plaintiff, stated in rebuttal, that the taxes for 1858 were not demanded of him personally; that they might have been demanded on the premises, of his agent; that he was frequently absent, and could not tell what might have transpired while absent; that he had sufficient personal property in each year to pay said taxes, and the same could have been made by the collector.

The plaintiff asked the court to give the following instruction, which was given: “If the deeds read in evidence by the plaintiff are genuine, the title of the plaintiff is a better title than the defendants,' and the plaintiff is entitled to recover.”

The court gave judgment for the plaintiff. The defendants appealed.

C. G. Mauro, for appellants.

Although the Register's deeds may not have been properly proved (we do not understand the court to have excluded them), still the collector's certificate was available as a defense to the action.

The 15th section of the 5th article of the Revenue Act of 1857 makes the certificate prima facie evidence of title until the expiration of the time for redemption, and warrants the purchaser in taking possession and using the premises. The only restriction is that he shall not cut or carry away any timber on the land until the time of redemption shall have expired.

How did the plaintiff attempt to overcome this prima facie title of the defendants? Solely upon the ground that the collector had not used due diligence to collect the taxes. The evidence of Fulton, in rebuttal, was given upon this supposition alone.

To this position there are several answers. The 22d section of the 3d article of the act does give authority to the collector to seize and sell all the goods and chattels of the persons liable for the taxes, after demanding payment, or visiting his place of abode for that purpose, and the lapse of ten days thereafter; but this is not mandatory, but merely cumulative--...