Eau Claire Lumber Co. v. Anderson

• Decision Date: 27 March 1883
• Citation: 13 Mo.App. 429
• Parties: EAU CLAIRE LUMBER COMPANY, Defendant in Error, v. CHARLES K. ANDERSON, Plaintiff in Error.
• Court: Missouri Court of Appeals

13 Mo.App. 429

EAU CLAIRE LUMBER COMPANY, Defendant in Error,

v.CHARLES K. ANDERSON, Plaintiff in Error.

St. Louis Court of Appeals, Missouri.

Mar. 27, 1883.

ERROR to the St. Louis Circuit Court, GOTTSCHALK, J.

Affirmed.

W. C. MARSHALL, for the plaintiff in error: The assessments, levies, and sales, being in the name of Thomas, were nullities, and the failure of Anderson to pay them constituted no breach of his covenants.--Rev. Stats. 1865, p. 100, sect. 13; Abbott v. Lindenbower, 42 Mo. 162; Hume v. Wainscott, 46 Mo. 145; Abbott v. Doling, 49 Mo. 302. Under the statutes of 1865, assessments were required to be made in the name of the owner, “and before a levy, forfeiture, or sale he should be notified by advertisement, published for four weeks, in some newspaper, of the delinquency.”--Rev. Stats. 1865, p. 129, sect. 119; Large v. Fisher, 49 Mo. 307; Spurlock v. Allen, 49 Mo. 178; Yankee v. Thompson, 51 Mo. 234; Smith v. Funk, 57 Mo. 239; Hubbard v. Gilpin, 57 Mo. 441.

FRED. WISLIZENUS, for the defendant in error: The delivery of a deed, for the benefit of the grantee, for record, is, in the absence of a rejection by the grantee, a sufficient delivery.-- Gorman v. Stanton, 5 Mo. App. 585; Meyer v. Hill, 13 Mo. 247; Kane v. McKown, 55 Mo. 181; Dale v. Lincoln, 62 Ill. 24; Cecil v. Beaver, 28 Iowa, 243. Statutory covenants run with the land and inure to him who suffers actual damage by their breach.-- Walker v. Deaver, 5 Mo. App. 139; Dickson v. Desire, 23 Mo. 151; Chambers v. Smith, 23 Mo. 179; Maguire v. Riggin, 44 Mo. 512. The burden is on him who denies the validity of an assessment.--Blackwell on Tax Tit. 145; Sully v. Kuhl, 30 Iowa, 276; Railroad Co. v. Maguire, 49 Mo. 482; Insurance Co. v. Charles, 47 Mo. 462. The owner is not necessarily the holder of the legal or equitable title.-- Stockdale v. Webster, 12 Iowa, 536; Willard v. Blount, 11 Ired. 624.

BAKEWELL, J., delivered the opinion of the court.

This was an action for a breach of covenant of warranty implied in the words, ““grant, bargain, and sell.” The petition alleges that defendant, on April 18, 1872, conveyed to one Chapman the undivided half of a tract of land in the city of St. Louis, which is described, which premises were acquired by Anderson by deeds of one Salisbury, as to a part thereof, and by deed of one Bissell, as to the residue of the tract; that on June 24, 1872, Chapman conveyed to the plaintiff all his right, title, and interest in the premises. These allegations are made part of each count. The first count states that, at the time of the deed to Chapman, there was outstanding in one Donegan a tax-title to an undivided forty-fifth of the land in question; said land having been duly sold for the unpaid taxes of 1866, at which time defendant was in possession of, and owned an interest in, the premises; that Donegan was by law entitled to $75 for redemption of his interest in the land; and that plaintiff, on March 25, 1874, paid to Donegan $37.50 in order to free plaintiff's one-half interest from the encumbrance; for which sum he asks judgment. The second count alleges that, at the time of the conveyance to Chapman, there was outstanding in one Chambers a certificate of title to one undivided forty-first of this real estate, said real estate having been duly sold for the unpaid taxes of 1867, at which time defendant was in possession of, and owned an interest in, the premises; that Chambers was entitled by law to the sum of $107.71 for the redemption of his said interest, and that plaintiff paid to Chambers, on March 28, 1874, $53.59, in order to free his one-half interest from this encumbrance; he asks judgment of this sum. The third count states that, at the time of the conveyance to Chapman, the real estate was encumbered with the liens of taxes assessed and unpaid on said property for 1868, 1869, 1870, and 1871; that, during all that time, defendant was in possession of, and owned an interest in, the property, and the taxes of said years remaining unpaid, the state advertised and sold the lot in conformity to law, and bought and held the title thereto; and that plaintiff, to redeem its one-half interest, paid out, on March 28, 1874, $181.42, for which it asks judgment.

Defendant, in his answer, denies all the allegations of the petition as to outstanding tax-titles and liens and these payments by plaintiff, and the conveyance by Chapman; but does not traverse the other allegations of the petition.

On the trial, the deeds described in the petition were introduced. The deed from Anderson contained the words “grant, bargain, and sell,” and an express covenant of general warranty. Plaintiff also introduced a deed from Bissell to defendant, dated October, 1847, for a tract of land embracing that in question here. This deed purports to convey the fee. Plaintiff then introduced evidence tending to show that defendant went into possession of the land mentioned in the deed from Bissell, under said deed, and that plaintiff was, at the time of the trial, in possession of the land described in the deed to Chapman.

The bill of exceptions then states that “plaintiff introduced testimony tending to show that the land, or a part thereof, had been assessed, levied upon, and sold for the general state, county, school, and municipal taxes for 1867, 1868, 1869, 1870, and 1871, for sums of money equal to the amount for which the court has found on the second and third counts of the petition; and that it appeared from the testimony that all said assessments, levies, and sales had taken place under taxation and assessment of the said land in the name of Margaret Thomas as the owner thereof; and it also appeared from the said testimony that plaintiff had redeemed and paid said back taxes for said years, with sums of money about equal to those mentioned in the verdict herein on the second and third counts of the petition. The plaintiff then rested; and this was all the testimony in the cause, both parties admitting the foregoing facts to be the true state of the matters in dispute herein.”

The cause was tried without a jury. The court found for defendant on the first count, and for plaintiff on the other counts, assessing “damages, on the first count, at the sum of $58.04, and on the second count, at the sum of $196.42; total, $254.46,” etc. This is evidently a clerical error of “first” and ““second” for “second” and “third.” The decree further states that “plaintiff recover of defendant, on the second and third counts of the petition, the damages aforesaid as assessed, together,” etc.

Under the law as it stood when these taxes were assessed, it was held that it might be shown against the tax-deed itself (even though the statute made the deed “conclusive evidence” that the tax collector had complied with the law), that the assessment was in the name of a person who never had been the owner of the land. It was held that an assessment of real estate in the name of a person who had at no time been owner of the land, was an absolutely void assessment; and that it was incompetent for the legislature to make the deed...