Hopkins v. Scott

• Decision Date: 30 April 1885
• Citation: 86 Mo. 140
• Parties: HOPKINS et al., Appellants, v. SCOTT.
• Court: Missouri Supreme Court

86 Mo. 140

HOPKINS et al., Appellants,

v.SCOTT.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Jackson Circuit Court.--HON. T. A. GILL, Judge.

REVERSED.

Karnes & Ess, James F. Mister and R. H. Field for appellants.

(1) The failure to recite in the deed that the property was exposed to sale by the collector, “for the payment of taxes, interest and costs due and unpaid upon said real property,” is absolutely fatal to the efficacy of the deed, because it is only in such cases that the city collector had any authority whatever for selling the property at all. (2) The tax deed, authorized by the charter of the City of Kansas, must have in it the entire substance of the form therein prescribed, and the omission of any recital of fact, which recital is contained in that form, is fatal to the tax deed, and if there is any presumption it is that the law was not complied with. Lain v. Cook, 15 Wisconsin, 446; Wakely v. Mohr, 18 Ibid, 321; Kroegen v. Knab, 22 Ibid, 429; Hubbard v. Johnson, 9 Kansas, 632; Grierson v. O'Connell, 54 California, 522; Hubbell v. Campbell, 56 Ibid, 529; McDermott v. Tully, 27 Arkansas, 226; Jacoway v. Gault, 20 Ibid, 19; Atkinson v. Kinnon, 20 Wendell (N. Y.) 249; Merritt et al. v. Porchester.71 N. Y. 309; Keith v. Preston, 5 Grattan (Va.) 120; French v. Patterson, 61 Maine, 203; Lovejoy v. Lunt, 48 Maine, 378; Chandler v. Spear, 22 Vermont, 388; Long v. Burnett, 13 Iowa, 29; Yankee v. Thompson, 51 Missouri, 234, 238; Little v. Herndon, 10 Wallace (U. S.) 26; French v. Edwards, 13 Ibid, 506. (3) The city collector has no general authority to expose to public sale real property. He has only the naked power conferred by the statute (amended charter of the City of Kansas, affirmed March 24, 1875). There can be no supplying of the omission to recite by presumption that he followed the power given in making the sale. Hogan v. Brashears, 13 Arkansas, 242; McDermott v. Scully, 27 Ibid, 226; Hubbard v. Johnson, 9 Kansas, 634; Long v. Burnett, 13 Iowa, 28; French v. Patterson, 61 Maine, 210; Woodward v. Sloan, 27 Ohio, 592; Yankee v. Thompson, 51 Missouri, 237; Cooley on Taxation, 209, 324; Blackwell on Tax Title, 46. (4) The omission of recitals in a tax deed, such as the law requires, render it void, and such defect cannot be aided by evidence aliunde. McDermott v. Scully, 27 Arkansas, 227; Pack v. Crawford et al., 29 Ibid, 489; Bonnett v. Roan, 20 Ibid, 114; Hogan v. Brashears, 13 Ibid, 242; Wakeley v. Mohr, 18 Wisconsin, 321; Walker v. Moore, 2 Dillon (C. C. R.) 256; Cooley on Taxation, 242. (5) Such a deed, being void upon its face, does not put into operation any statute of limitations. Burroughs on Taxation, sec. 121, p. 340; Geike v. Kirby, Carpenter & Co., U. S. Circuit Court ““Reporter” (1879) p. 37; Moore v. Brown, 11 How. (U. S.) 414; Little v. Herndon, 10 (Wall. U. S.) 26; Cogal v. Ralph, 24 Minnesota, 198; Sheely v. Hinds, 27 Ibid, 259; McGarnock v. Pollock, 13 Nebraska, 535; Sutton v. Stone, 4 Ibid, 319; Kilpatrick v. Sismeross, 23 Texas, 114.

Hough, Overall & Judson and C. A. Kenyon for respondent.

(1) The deed under which defendant claims is valid on its face. The statute was substantially complied with, and this is all that is required. Hubbard v. Johnson, 9 Kan. 632; Williams v. McLanahan, 67 Mo. 499; Bank v. Musereau, 3 Barb. Ch. 577. (2) Even if the tax deed is void upon its face, the special statute of limitations should be held to apply, the defendant, and those under whom he claims, having been in possession for the time limited. Waterson v. Deavor, 18 Kan. 223; Thomas v. Stickle, 32 Ia. 71; Douglass v. Tillock, 34 Ia. 262.

NORTON, J.

This is an ejectment suit to recover possession of a certain lot in the City of Kansas, described in the petition, and on the trial of the cause defendant obtained judgment, from which plaintiffs have appealed. It is conceded that the title to the lot in question is in the plaintiffs, and that they are entitled to recover, unless their title has been divested by a certain tax deed, put in evidence, through which defendant claims, or unless their right of action was barred by limitation. It is contended by plaintiffs' counsel that the tax deed, under which defendant claims title, is void upon its face. The circuit court held it to be valid, and this ruling of the court is one of the grounds of error assigned.

The first question, therefore, presented for determination is whether or not said deed is void on its face. And this question is to be determined by an application of the statute authorizing its execution to the deed, to ascertain whether it conforms to the statutory requirements. Before proceeding to make such application it may be observed that it seems to be settled, when a statute prescribes the form of the tax deed, that such form becomes substance and must be strictly followed. Blackwell on Tax Title, 406; Williams v. McLanahan, 67 Mo. 500; Grimm v. O'Connell, 54 Cal. 522. As a corollary, deducible from this principle, it may be said that when the statute provides that the tax deed shall be substantially in the form prescribed, though such form need not be literally, it must be substantially, followed. While it is not necessary, in such cases, to make the recitals in the words employed in the prescribed form, it is necessary that the recitals, required in such form, be substantially made and, if not so made, such omission is fatal to the deed. Lain v. Cook, 15 Wis. 446; Wakely v. Mohr, 18 Wis. 321; Krueger v. Knab, 22 Wis. 429; Hubbard v. Johnson, 9 Kan. 632. It is provided by section 64 of the charter of the City of Kansas (Laws 1875, p. 237), that “tax deeds executed by the city collector shall be substantially in the following form.” The statute then gives the form of the deed, and, among other recitals required to be made therein, is the following: “That the city collector did expose to public sale the real property described [ for the payment of taxes, interest and costs then due and unpaid upon said real property.”] The tax deed relied upon by defendant contained every other recital in the form prescribed by the statute, except the one above italicized and included in the brackets, which is not only entirely omitted from the deed, but it contains no other recital equivalent to or substantially like it.

It is true that other required recitals are made in the deed in the exact language used in the form prescribed, from which an inference can be drawn that the collector did expose to public sale the property for the payment of taxes, interest and costs thereon due and unpaid; but this does not comply with the requirement of the law, which is that the recitals shall be substantially and affirmatively made, and not that one fact, required to be affirmatively and substantially made, may be inferred from other facts recited in the deed, which the statute also requires to be substantially and affirmatively made. The argument made by counsel in support of the validity of the deed is, that, although the recital of a fact required by the law to be substantially made is not so made, but entirely omitted from the deed, such omission is immaterial, provided you can, from other recitals of facts contained in the deed, which the statute also requires to be made, reasonably infer that the fact contained in the omitted recital took place or occurred. We think this argument unsound. The mandate of the law is that the recitals in the tax deed shall be substantially as set forth in the statutory form. The conclusion of the argument is that you may omit entirely from the deed one required recital, provided, from the other required recitals which are made in the deed, you can infer the omitted recital.

Section 64, supra, of the charter requires the following to be substantially stated by the collector in a tax deed, viz: “That the following described real property, situated in the City of Kansas, in the county of Jackson and state of Missouri, was subject to...