Ewart v. Davis
| Decision Date | 31 October 1882 |
| Citation | 76 Mo. 129 |
| Parties | EWART, Appellant, v. DAVIS. EWART, Appellant, v. HAYTER. |
| Court | Missouri Supreme Court |
Appeal from DeKalb Circuit Court.--HON. JOSEPH P. GRUBB, Judge.
AFFIRMED.
This was an action of ejectment for land in DeKalb county. Plaintiff claimed title through a tax deed, made in pursuance of a sale for the taxes of 1872. To show that this deed was invalid, the defendant gave in evidence the following:
1. The general record book of the county court, in which appeared the following entry:
No list of lands appeared anywhere in said book.
2. A book entitled as follows:
This list included the land in controversy. At the foot of the list a judgment in the exact form prescribed in section 192 of the Revenue Law of 1872, was entered as of July 22nd, 1873, and signed by the presiding justice of the county court, and attested by the clerk with the seal of the court.
3. A book purporting to be the special execution record for taxes of 1872. This book contained a copy of the list against which judgment was rendered, but contained no copy of the judgment, nor was it certified by the clerk. Other facts appear in the opinion of the court.
Section 219 of the Revenue Act of 1872, so far as it prescribes the force and effect of a tax deed, is as follows: “Deeds executed by the collector under the provisions of this act shall be held and received, in all places where the title to the real estate thereby conveyed is involved, as prima facie evidence that each and every act and thing required to be done by the provisions of this act has been complied with; and the party offering such deed in evidence shall not be required to produce the judgment, precept nor any other matter or thing as evidence to sustain such conveyance and the title thereby acquired; Provided, however, That the party controverting such deed and the title thereby conveyed may, for the purpose of invalidating or defending the same, show either one of the following facts, only: 1st, That the land conveyed by such deed was not subject to taxation at the time of the assessment thereof, under which assessment such sale was made; 2nd, That the taxes due thereon had been paid, according to law before the sale; 3rd, That such land had been duly redeemed, according to law, or that tender of the redemption money had been made before the execution of such deed.”
Ramey & Brown, Vinton Pike and Bennett Pike for appellant.
Thos. E. Turney for respondent Davis.
Simrall & Sandusky for respondent Hayter.
The collector had no authority to sell because no such execution as is required by section 195 was ever issued. The record admits that he had a memorandum, handed him by the county clerk, of the land and amount of taxes; but it contained no copy of the judgment, or of the order of sale, nor was it certified to in any manner or authenticated by seal, and was plainly a mere unofficial memorandum. To have conferred any authority upon the collector to act, it should have contained a copy of the judgment and order of sale, and should have been attested by the clerk's certificate, with the seal of court attached. Boal v. King, 6 Ohio 11; Ins. Co. v. Hallock, 6 Wall. 556; Hannel v. Smith, 15 Ohio 134.
S. G. Loring also for respondent Hayter.
There is not attached to said pretended execution any copy of any judgment of the county court against the lands in suit for said tax of 1872, and neither is there attached thereto any certificate of the clerk of the truth of said record or copy. And the reason why said clerk did not attach to said pretended process said judgment and his certificate must have been because: 1st, There never was a judgment record of the lands in suit for said tax; 2nd, Because there never was any judgment or order of sale, made and entered by the county court for said tax against the lands in suit.
It is altogether unnecessary to notice but one of the numerous points which have been discussed, since that point is decisive of this case. It is this: Section 195 of the Revenue Law requires that the county clerk “make a correct copy from the judgment record of the lands and lots against which judgment is rendered in any suit for taxes, interest and costs due thereon, with the description of the property, the amount due on each...
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... ... defendant's first contention counsel have cited State ... v. Atkinson, 271 Mo. 28, 195 S.W. 741; Cook v ... Hacklemann, 45 Mo. 317; Ewart v. Davis, 76 Mo ... 129. In Atkinson's Case the finding under consideration ... was one made by the Public Service Commission, an ... ...
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