Hill v. Atterbury

• Decision Date: 31 October 1885
• Parties: HILL et al., Appellants, v. ATTERBURY.
• Court: Missouri Supreme Court

88 Mo. 114

HILL et al., Appellants,

v.ATTERBURY.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Buchanan Circuit Court.--HON. J. P. GRUBB, Judge.

AFFIRMED.

Strong & Mosman for appellants.

(1) The motion to make Brown party defendant specified no reasons and should have been denied. R. S., sec. 3557. Revised Statutes, section 2244, is permissive only, not mandatory. (2) The court erred in overruling plaintiffs' motions to strike out parts of amended answer of Atterbury and the entire answer of Brown. (3) The court erred in admitting the quit-claim deed from Brown to Atterbury in evidence. The latter claimed title in fee-simple. A quit-claim deed does not convey land at all, only purports to release some interest therein. Bogy v. Shoab, 13 Mo. 380; Jecko v. Taussig, 45 Mo. 169. (4) The court erred in admitting in evidence the tax deed to Brown. It showed on its face a non-compliance with Wagner's Statutes, volume 2, section 183, page 1196, and contravened the provisions of Wagner's Statutes, volume 2, section 223, page 1208. (5) The court erred in rejecting plaintiffs' offer to prove that no taxes were assessed against the land for 1872. Abbott v. Lindenbower, 42 Mo. 62; Ewart v. Davis, 76 Mo. 129. (6) A tax deed void on its face cannot set the special statute of limitations in motion whether the grantee in the tax deed entered upon and held possession of the property or not. Skinner v. Williams, 85 Mo. 489; Mason v. Crowder, 85 Mo. 526.

Smith & Krauthoff also for appellants.

(1) A tax deed, which shows by its recitals that the land was offered for sale on a day other than that fixed by statute, is void upon its face. 2 W. S., p. 1196, sec. 183; Mason v. Crowder, 85 Mo. 526; Hopkins v. Scott, 86 Mo. 140; Eutrekin v. Chambers, 11 Kan. 368. The sale cannot be upheld as one continued from a previous day unless it further appears that the same was actually begun on the day fixed by law. Prindle v. Campbell, 11 Minn. 212; Sheeby v. Hinds, 27 Minn. 259. (2) The deed does not recite an offer to sell on the day fixed by law, nor any adjournment from day to day until the time named. Both these facts must appear from the face of the deed; they cannot be presumed. Hopkins v. Scott, 86 Mo. 140; Abbott v. Doling, 49 Mo. 302, 304; Yankee v. Thompson, 51 Mo. 234, 237, et seq.; McDermott v. Scully, 27 Ark. 226, 228; Wilkins v. Huse, 10 Ohio, 139, 141, 142; Williams v. Kirtland, 13 Wall. 306, 309; French v. Edwards, 13 Wall. 506, 513; Wambole v. Foote, 2 Dakota, 227; White v. Flynn, 23 Ind. 46. (3) Where a tax deed is void on its face, or is void because of something de hors the record showing a want of jurisdiction to make the sale or deed in question, it is not within the provisions of Wagner's Statutes, volume 2, section 221, page 1207. Black. on Tax Tit. (4 Ed.) 401, 402; Breisch v. Coxe,81 Pa. St. 336, 348; Laird v. Heister,24 Pa. St. 452, 463; Taylor v. Miles, 5 Kas. 498, 596, 507, et seq.; Carithers v. Weaver, 7 Kas. 110, 122, 123; Prindle v. Campbell, 9 Minn. 213, 219, 220. (4) The matters as to the non-assessment of the land, etc., offered to be proved were all jurisdictional and essential pre-requisites to the exercise of the power to sell for taxes. They were necessary to set the statute in motion. Without them, the provisions of the statute never attached to the transaction. Blackw. Tax Tit. (4 Ed.) 114, 116, 174, 276; Cooley on Tax. 259, 292, 324; Ewart v. Davis, 76 Mo. 129; 133, 134; 1 Desty on Tax. 449, 450; McReynolds v. Longenberger,57 Pa. St. 13, 27; Hoffman v. Bell,61 Pa. St. 444, 450, et seq.

Ramey & Brown for respondent.

(1) Brown was properly made a party. R. S., 1879, sec. 2244; Hayden v. Stewart, 27 Mo. 286; Sutton v. Casseleggi, 77 Mo. 397. (2) The court properly overruled motions to strike out parts of defendants' answers. (3) The tax deed strictly complies with the statutory requirements as to its form and recitals. (4) The defendants are protected by the bar of the special statute of limitations. 2 W. S., p. 1207, sec. 221. The said statute is constitutional. Oconto Company v. Gerard, 46 Wis. 317; McMillen v. Wehle, 13 N. W. Rep. 694; Edgerton v. Byrd, 6 Wis. 527; Lawrence v. Kennedy, 32 Wis. 281; Wood v. Meyer, 36 Wis. 308; Hill v. Kirk, 66 Wis. 447; Lindsay v. Fay, 25 Wis. 460; Allen v. Armstrong, 16 Iowa, 508; Thomas v. Stickle, 32 Iowa, 71; Pillow v. Roberts, 13 How. 472; Monigona & Co. v. Blair, 51 Iowa, 447.

NORTON, J.

This is a suit in ejectment to recover certain lands in DeKalb county described in the petition. The cause was taken by change of venue to Buchanan county, where on a trial judgment was rendered for the defendants, from which the plaintiffs have appealed. The suit was brought against defendant Atterbury, and on motion of one Ira Brown, he was made defendant over plaintiffs' objection and this action of the court is the first ground of error assigned. In ejectment suits, it is provided by section 2245, Revised Statutes, that “the person through whom defendant claims title to the premises may, on motion, be made a co-defendant.” Defendant Atterbury claimed through Brown, and by the very terms of the statute the court was authorized to allow him to come in and defend. Hayden v. Stewart, 27 Mo. 286. If Atterbury held the possession of the land under Brown, then Brown had a right as landlord to defend the suit. Sutton v. Cassellegi, 77 Mo. 397.

The defence set up in the answer was a tax deed conveying the land in controversy to Brown, and the special statute of limitations of three years under section 221, Wagner Statutes, in force at the time the sale was made. Both answers set up with great particularity all the facts stated in the tax deed, and plaintiffs moved to strike out such portions of the answers on the ground that the matters stated were provable on the trial under the general issue, and should not, therefore, have been pleaded. The statute of limitations relied upon, only applied to cases where a claim of title was set up under a tax deed, and no valid objection can be made to an answer which sets up with particularity the facts which bring the defendant's case within the operation of the statute. If not necessary to plead it with such particularity, and the facts stated could be proved without their being stated under the general issue, the refusal of the court to strike it out was not such an error as to justify a reversal, inasmuch as by such statement the plaintiffs were informed of the specific grounds on which the defence relied, of which they might otherwise have been ignorant until proved on the trial.

At the trial plaintiffs put in evidence various deeds which showed title in them to five-sixths of the land in controversy. To overcome this title, defendants put in evidence a quit-claim deed from Brown to Atterbury, dated in July, 1876. They also put in evidence a collector's deed which recites in statutory form, among other things, that the lands in controversy were exposed to sale by the collector on the eighth day of October, 1873, for the taxes of 1872, that they were not sold for want of bidders and were forfeited to the state, and that afterwards on the thirty-first of October, 1873, they were purchased by Ira Brown. This deed was objected to on the ground that it was void on its face, in that it recites that the land was offered for sale on the eighth day of October, 1873, which could not have been the first Monday in October, the time at which the sale was required to be advertised. While the statute provides that such sales shall be advertised for the first Monday in October, it also provides that “the collector shall continue such sales from day to day until all the tracts of land, or town or city lots, contained in the delinquent list on which taxes and costs remain unpaid, shall be sold...