Duff v. Neilson

• Decision Date: 06 December 1886
• Citation: 2 S.W. 222,90 Mo. 93
• Parties: DUFF v. NEILSON.
• Court: Missouri Supreme Court

2 S.W. 222

90 Mo. 93

DUFF v. NEILSON.

Supreme Court of Missouri.

December 6, 1886.

1. ERROR — RECORD — TIME OF FILING MOTION FOR NEW TRIAL.

An objection, upon writ of error, that it does not appear from the bill of exceptions when the motion for a new trial was filed, is not tenable, if it appears from the dates in the transcript that the motion was filed within the statutory period.

2. TAXATION — JUDGMENT FOR TAXES — AFFIDAVIT OF NOTICE — 2 WAG. ST. MO. 1198.

A valid judgment for taxes cannot be rendered if the collector of taxes fails to attach to the delinquent list filed by him the affidavit required by 2 Wag. St. Mo. 1198, alleging, among other things, that due notice of the application for judgment has been given.

3. SAME — DEED — RECITALS IN — SUPPLYING OMISSION.

A tax deed containing no statement of the date when the special execution under which the property was sold issued, is void, and the defect is not cured by the mere insertion of such date in the deed after it has been recorded and the re-recording of it.

Error to circuit court, Morgan county.

A. W. Anthony, for plaintiff in error. Draffen & Williams, for defendant in error.

SHERWOOD, J.

Ejectment for block 29, in the town of Versailles. Defendant claims under a tax deed executed under the law of 1872.

1. It sufficiently appears from dates in the transcript that the motion for a new trial was filed within the statutory period, and this is all that is required.

2. Section 190 of the Laws of 1872 (2 Wag. St. 1198) required the collector to file with the county clerk a list of delinquent lands and lots at least five days before the commencement of the term at which application for judgment was to be made, and required the clerk to receive and record said list in a well-bound book, called the "Judgment Book." That section also required the collector to attach to said delinquent list his affidavit declaring that the list was correct, etc.; that he was unable to collect the taxes on the delinquent lands; that such taxes remained due and unpaid; and that due notice of application for judgment and of sale had been given as required by law. This affidavit the clerk was to enter on record at the foot of the delinquent list against which the judgment was to be rendered. This section of the statute did not meet with compliance in this instance, and, of course, the county court had no valid basis on which its judgment for the sale of the land for taxes could rest. The object of that ...