Kinney v. Forsythe

• Decision Date: 26 November 1888
• Citation: 9 S.W. 918,96 Mo. 414
• Parties: KINNEY et al. v. FORSYTHE et al.
• Court: Missouri Supreme Court

9 S.W. 918

96 Mo. 414

KINNEY et al. v. FORSYTHE et al.

Supreme Court of Missouri.

November 26, 1888.

1. TAXATION — TAX DEED — VALIDITY — JUDGMENT.

Under the revenue law Mo. 1872, conferring upon the county court jurisdiction for the enforcement of tax liens, and ordering a special July term for that purpose, and providing that the collector shall give four weeks' notice that at the July term he will apply for judgment, but that he may apply at a succeeding term if from good cause he shall be unable to obtain judgment at the July term, a tax deed showing that judgment was obtained at the August term, but not showing good cause for not obtaining it at the July term, is void on its face.

2. SAME — CONTENTS OF JUDGMENT — EXECUTION RECORD.

Neither can the deed stand where the judgment does not describe the land, nor state the manner of giving notice of application for it, and where the execution record contains no authenticated copy of the judgment and order of sale.

3. SAME — ACTION TO SET ASIDE — EVIDENCE — RECORDS OF COUNTY COURT.

The records of the county court are competent to defeat a tax deed apparently valid.

4. LIMITATION OF ACTIONS — RUNNING OF THE STATUTE — VOID TAX DEED.

Laws Mo. 1872, p. 130, § 221, providing that a suit for the recovery of lands sold for taxes, or to defeat or avoid the sale or conveyance, except where the taxes were paid, or the land was not subject to taxation, or has been redeemed, shall be commenced within three years from the recording of the tax deed, have no application where the deed is void on its face, and three years' adverse possession does not aid the purchaser.

Appeal from circuit court, Mercer county; G. D. BURGESS, Judge.

Ejectment by William Kinney and others against Hiram W. Forsythe and others. Judgment for plaintiffs, and defendants appeal. Section 221, p. 130, Sess. Acts Mo. 1872, provides: "Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, (except in cases where the taxes have been paid, or the land was not subject to taxation, or has been redeemed as provided by law,) shall be commenced within three years from the time of recording the tax deed, and not thereafter. * * *"

H. J. Alley, for appellants. Millard Robinson, for respondents.

SHERWOOD, J.

Ejectment for land in Mercer county. The title of the plaintiffs was admittedly perfect, unless it had been divested in consequence of the tax sale, deed recorded, and possession thereunder for three years before suit brought. The taxes under which the land was sold were for the years 1868, 1869, 1870, and 1871, and the sale took place October 7, 1872, the deed being made December 11, 1874. The sale consequently took place under the provisions of the statute approved March 30, 1872, (Sess. Acts 1872, p. 119, § 182 et seq.)

1. Under the provisions of section 182, original jurisdiction was conferred on county courts for the enforcement of liens against real property, and a special term of court, the third Monday of July in each year, was ordered for that purpose. At the time the judgment of the county court was rendered herein the regular terms of the county courts were fixed by statute on the first Monday in February, May, August, and November....