Donohoe v. Veal

• Decision Date: 31 January 1854
• Citation: 19 Mo. 331
• Parties: DONOHOE, Respondent v. VEAL, Appellant,
• Court: Missouri Supreme Court

19 Mo. 331

DONOHOE, Respondent

v.VEAL, Appellant,

Supreme Court of Missouri.

January Term, 1854.

1. Under the revenue act of 1845 and the amendatory act of 1847, no title to land sold for taxes passes untill a deed is executed by the register. The deed does not relate back to the sale.

2. The 4th section of the amendatory revenue act of March 12, 1849, only applies where the sale was made after its passage.

Appeal from Chariton Circuit Court.

Turner, for appellant, among others, made the following points:

1. The act making the register's deed prima facie evidence of title is unconstitutional. If the legislature can make it prima facie, it can also make it conclusive evidence of title, and thus give the register absolute control over private property within the state. 2. If, however, the act is constitutional, a deed, to be prima facie evidence, must show, by recitals, that all the pre-requisites of the law have been complied with, which the deed, in this case, does not. 3. But if the deed be sufficient evidence of title in Thomas Donohoe, yet it is only evidence of title from its date, and does not relate back to the sale. Alexander v. Merry, 9 Mo. 514. Hart v. Rector, 13 ib. 497. The quit claim deed from Thomas Donohoe to the plaintiff did not pass the title subsequently acquired by the register's deed. Bogy v. Shoab, 13 Mo. 365. The plaintiff could at most only recover for trespasses committed after the date of the register's deed.

A. Leonard, for respondent.

1. The amendatory revenue act of February 13, 1847, making the register's deed prima facie evidence of title is, beyond all questions, constitutional. 20 Ohio 561. Vance v. Schuyler, 1 Gill. (Ill.) Rep. 162. 1 Watts, 344. A sale for taxes and a lapse of two years, without redemption, are the jurisdictional facts that authorize the register to make a deed, and the deed itself is prima facie evidence of these facts. It is enough that there has been a sale de facto, and not necessary, in order to make out a prima facie title, that it should appear to have been rightfully conducted. 2. The deed related back to the sale, and vested the title in the purchaser from that time. This is so on common law principles; but in this case, there is a statute which so provides in effect. Amend. Rev. Act of 1849, § 4.

GAMBLE, Judge, delivered the opinion of the court.

Donohoe filed his petition against Veal, to recover treble damages for alleged trespass on a tract of land claimed by Donohoe. The action was under the statute allowing the recovery of treble damages for certain descriptions of trespass.

On the trial, the plaintiff, in order to show his title to the land, gave in evidence a deed from the register of lands of the state to Thomas Donohoe, dated February 10, 1851, in which it was recited that the state and county taxes on seven tracts of land described in the deed, amounting to eight dollars and thirty-six cents, including interest and incidental costs, remained due to the state and county; and that the register had, on the first Monday in June, 1848, advertised the land for sale to pay the taxes and penalties remaining due--the sale to take place on the first Monday in October, 1848; and the collector of the county on that day, before the court-house door of the county, exposed the land for sale, and did sell the same to Thomas Donohoe, for the taxes, interest and costs due thereon, he being the highest bidder for the same, for the sum of eight dollars and thirty-six cents; therefore the register conveyed the land in fee to said Thomas Donohoe. The plaintiff next gave in evidence a deed from Thomas Donohoe, for the land, conveying it by quit claim to the plaintiff, which was dated April 18, 1849. Objection was made to these deeds being admitted in evidence, but the objection was overruled, and they were read to the jury.

The evidence given by the plaintiff in relation to the trespass by the defendant, showed that trees were cut by him on the land after the date of the sale for taxes by the collector, and after the date of the deed from Thomas Donohoe to Stephen Donohoe, the present plaintiff, and before the execution of the deed by the register to Thomas Donohoe.

The Circuit Court, at the instance of the plaintiff, instructed the jury that, “if they found from the evidence, that the deeds read in evidence were executed and recorded as they profess, then they will find that the plaintiff was entitled to the land in the petition mentioned, from the 18th day of April, 1849; and if they find that defendant, at any time after that day, and before this suit was brought, cut down or carried away any timber or rails, on or from said land, they will find for plaintiff.”

1. The date mentioned in this instruction is that of the deed from Thomas Donohoe to the plaintiff, and the principle asserted is, that the plaintiff is entitled to maintain the action for trespasses committed by the defendant at any time after the conveyance made by Thomas Donohoe, although before the conveyance by the register. This position is attempted to be sustained in argument, on the ground that the register's deed made in February, 1851, has relation back to the sale made by the collector, in October, 1848, so as to vest the title to the land in Thomas Donohoe, from the date of that sale, and transmit the title to the plaintiff from the date of the conveyance made to him from Thomas Donohoe. The doctrine of relation has been applied in this court, in cases of sheriff's deeds, made after the lapse of considerable time from the actual sale. Crowley v. Wallace, 12 Mo. 146. Alexander et al. v. Merry, 9 Mo. 524. The principle stated in those cases, and which is extracted from the old books is, “that, where there are divers acts concurrent, to make a conveyance, estate or thing, the original act shall be preferred, and to this the other acts shall have relation.” The same rule has been applied to leases or deeds made in pursuance of an agreement, so as to make them relate to the date of the agreement. Johnson v. Stagg, 2 John. 510. So, an acknowledgment has been held...