Hilton v. Smith
| Decision Date | 02 June 1896 |
| Parties | Hilton, Interpleader, Appellant, v. Smith, Interpleader |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Reversed and remanded.
M Hilton for appellant.
(1) The fund here contended for belongs to the legal owner of the lots February 21, 1881, the date of the judgment in the condemnation proceedings. Hilton v. St. Louis, 99 Mo. 199. (2) At the date of the judgment in the condemnation proceedings Mary E. Tanner was the legal and equitable owner of the lots in controversy here. Florence M. Dickey was divested of her title by the proceedings in back tax cause number 300, the sheriff's deed therein vesting it in William D. Griswold, who in turn lost his title to Mary E Tanner December 4, 1880, by sheriff's deed in back tax cause number 1193. These tax proceedings destroyed the claim of Huntington Smith, if any he had, based on tax certificates for taxes of 1874 and 1875, and vested absolute title in Mary E. Tanner. The requirements of the law that a suit to enforce a lien on land for taxes must be brought against the owner thereof, is met and fulfilled by bringing the suit against the person who appears from the record of deeds to be the owner, in the absence of notice of the fact that such person was not the true owner, but had parted with his title by conveying it to another. This rule, however, does not require the collector to take notice of any lien or title not a proper matter of record in the recorder's office. Payne v. Lott, 90 Mo. 680; Vance v. Corrigan, 78 Mo. 94; Hunt v. Sack, 79 Mo. 661; Cowell v. Gray, 85 Mo. 169; Evans v. Robberson, 92 Mo. 192; Allen v. Ray, 96 Mo. 549. The books in the collector's office are not records within the rule laid down in Vance v. Corrigan, 78 Mo. 94, so that if the name of the defendant in the tax suit appears on these books as owning the land, he is to be regarded as the record owner. Watt v. Donnell, 80 Mo. 195; Allen v. Ray, 96 Mo. 542. The certificate of purchase under the law of 1872 did not confer title. Dalton v. Fenn, 40 Mo. 109; Parsons v. Viets, 96 Mo. 408. The tax title is conferred by the deed, and the deed does not even relate back to the sale. Donohoe v. Veal, 19 Mo. 331. The certificates of purchase gave their holder no lien on the realty. He acquired a mere claim or chose in action. Richardson v. Lowrey, 67 Mo. 411. The purchaser of a certificate might have his claim made a lien under section 219 of the revenue act (Wag. St. 1872) against the owner assessed with the taxes for which he bought, but not against a subsequent purchaser for taxes. Smith could not have made his claim a judgment lien under this section, against Griswold or Tanner, subsequent tax purchasers. Smith v. Laumeier, 12 Mo.App. 550; affirmed 84 Mo. 672. The tax titles under the law of 1877 spring from judgments made by the statute first liens on the land; hence it is, that the last valid tax title absolutely cuts out and destroys all former tax titles, and that the latest tax deed is paramount. Smith v. Laumeier, supra; Blackwell on Tax Titles, secs. 965, 968, and 969. "In a back tax case the execution goes against, and the sheriff sells the property, and not the interest of any particular person in it, and his deed conveys, in the language of the statute 'a title in fee to the purchaser.'" Allen v. McCabe, 93 Mo. 143. Where the evidence in a back tax cause shows a judgment against several lots which finds the amount of taxes, interest, and costs against each lot, and the execution conforms thereto, the deed thereunder passes the title, though in reciting the judgment it gives only the aggregate amount against all the lots, with the date of rendition of judgment. Jones v. Driskill, 94 Mo. 190-199. (3) Smith was not entitled to the three deeds issued October 1, 1880, if for no other reason than that he had permitted the lots to sell February 26, 1880, to Griswold for the taxes of 1876, and the year had not expired as required by section 210, revenue act, 1872. Hence those three deeds were issued without authority and are void. This section made it his duty to pay the taxes. Pitkin v. Reibel, 104 Mo. 505. (4) A conclusive answer to Smith's claim on grounds of equity is that according to the statement in his deeds he purchased the tax certificates April 10, 1879, subsequent to the rendition of judgment of back tax cause, number 300, of which he was bound to take notice.
Joseph S. Dobyns and Horatio D. Wood for respondent.
(1) At the date of the judgment in the condemnation proceeding, February 21, 1881, interpleader Huntington Smith, having duly recorded all his tax deeds in the year 1879 and 1880, was the owner of record of the lots in controversy and as such entitled to the whole of the fund of $ 1,940.40 now in court. (2) Hilton never having brought any suit against the tax purchaser Smith to avoid these tax sales and Smith's tax deeds having been recorded more than three years, are now no longer open to attack, except upon the three grounds that the taxes had been paid, or that the land was not subject to taxation, or had been redeemed from the sale. Session Acts, 1871-2, secs. 222 (221), 223 (222); Hill v. Atterbury, 88 Mo. 115; Allen v. White, 98 Mo. 55. (3) Back tax suits number 300 and number 1193 were filed after the time of redemption from the tax sales to Smith had expired and he was entitled to his tax deeds. Sec. 217 (216). This right of the purchaser to a deed is a vested one and so far savors of the realty as to descend to his heirs. Black on Tax Titles, sec. 312; 2 Blackwell on Tax Titles, sec. 963; Burroughs on Taxation, p. 322; State ex rel. v. Winn, 19 Wis. 304. (4) Smith not being a defendant in the back tax suits numbers 300 and 1193, under which Griswold and Tanner bought, was not affected by the judgments therein, has never had his day in court, and his title did not pass to the purchaser at the sales thereunder. Besides the collector before bringing his suit had actual notice of Smith's title, though not of record. Walcott v. Hand, 122 Mo. 621; Simonson v. Dolan, 114 Mo. 176; Blevins v. Smith, 104 Mo. 583; Graves v. Ewart, 99 Mo. 13; Powell v. Greenstreet, 95 Mo. 14; Gitchell v. Kreidler, 84 Mo. 472; Stafford v. Fizer, 82 Mo. 393; Corrigan v. Bell, 73 Mo. 53; Evans v. Robberson, 92 Mo. 192; Payne v. Lott, 90 Mo. 676; Vance v. Corrigan, 78 Mo. 94; Fox v. Hall, 74 Mo. 315; Watt v. Donnell, 85 Mo. 169. (5) Smith not having been a defendant in the back tax suit number 1193 under which Tanner bought was entitled to redeem. He had also duly recorded his six tax deeds before sale in this suit, so Tanner bought with actual notice of Smith's ownership. Corrigan v. Bell, 73 Mo. 53; Stafford v. Fizer, 82 Mo. 393; Cowell v. Gray, 85 Mo. 169. (6) Smith's tax deeds, recorded October 1, 1880, were properly taken out, notwithstanding the sale to Griswold on February 26, 1880, which was more than three years after the sale to Smith in October, 1876. Besides these, deeds were issued to correct deeds already issued October, 1879, and were based on the same sale. (7) Smith was not present at the sale to Tanner and there is no evidence anyone was there either professing to act for him or having any authority to represent him, nor was there any evidence connecting him with the Griswold purchase. The Tanner sale was December 4, 1880, while Smith's deeds had long before been duly recorded in October, 1879, and October, 1880, and Tanner thus bought with record notice that the land belonged to Smith. There is no evidence or pretense that Tanner was ignorant of Smith's title or that Smith's conduct in any way misled Tanner who, instead of paying the taxes, bought at the sale with full notice that the title of the defendants in the suit had been lost and passed to Smith, and she therefore took nothing as against him. Fox v. Hall, 74 Mo. 315; Vance v. Corrigan, 78 Mo. 94; Cowell v. Gray, 85 Mo. 169.
OPINION
In Banc.
DIVISION ONE.
The city of St. Louis, by proceedings in opening Park avenue, condemned portions of lots 5, 6, and 7, of city block, number 1282, and assessed as damages therefor the sum of $ 1,940.40. The money was paid into court by the city, and the two interpleaders, Hilton and Smith, each make claim to it. To which one of them the money belongs, depends upon which one was the owner of the land at the time the condemnation took place.
One Michael Brady was, as agreed, the common source of title. He died in 1868 and left surviving him his widow and four children. On the fourteenth of March, 1878, the widow, who had elected to take a child's part in the land, and who had in the meantime married one Thomas Bellew, and the children by guardian ad litem, commenced a proceeding for the partition of the land. A decree of partition and order of sale was rendered March 27, 1878, and on the twentieth of April, 1878, the land was sold by a commissioner to John Taylor. The sale was confirmed by the court May 2, 1878, and on the same day a deed was made to the purchaser by the commissioner.
July 3, 1878, John Taylor sold and conveyed the land to Manitho Hilton. On July 8, 1879, Hilton conveyed by quitclaim deed to Florence M. Dickey. This deed was not recorded until March 11, 1880.
On the fourteenth of July, 1879, a suit was commenced in the circuit court by the state, at the relation of the collector, against Manitho Hilton and others to enforce the state's lien for taxes on the lots for the year 1877. Judgment was rendered May 26, 1880; execution issued November 4, 1880; sale of lots was made to Mary E. Tanner, December 4, 1880; deed...
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