Lagroue v. Rains

• Decision Date: 31 October 1871
• Citation: 48 Mo. 536
• Parties: CHARLES A. LAGROUE et al., Appellants, v. JOHN RAINS et al., Respondents.
• Court: Missouri Supreme Court

48 Mo. 536

CHARLES A. LAGROUE et al., Appellants,

v.JOHN RAINS et al., Respondents.

Supreme Court of Missouri.

October Term, 1871.

Appeal from Schuyler Circuit Court.

A. J. Baker, for appellants.

The posting of written handbills was insufficient. (Abbott v. Lindenbower, 42 Mo. 162; Blackw. Tax Tit. 215; Williams v. Payton, 4 Wheat. 79; Barker v. Rule's Lessee, 9 Cranch, 64; Garnett v. Wiggins, 1 Scam. 337; Fitch et al. v. Pickard et al., 4 Scam. 69; Pope & Hammer v. Hayden, 5 Ala., N. S., 433; Scales v. Alvis, 12 Ala. 617; Hughey v. Horrell et al., 2 Ham. 231; Mills v. Walker, 4 Mich. 641; Styles v. Weir et al., 26 Miss. 189; Brown v. Veazie, 25 Me. 359; Curlew v. Hayden, 1 Verm. 359; Young v. Martin, 2 Yeats, 312; Porter v. Whitney, 1 Greenl. 306; Pierce v. Sweester, 2 Carter, 649; Tidd v. Smith, 3 N. W. 178.) The deed, showing as it does that the notice required by law has not been given, is void upon its face. (Moore v. Browne et al., 4 McLean, 211; Farrar v. Eastman, 10 Me. 191.)

McGoldrick & Haywood, with Noble & Hunter, for respondents.

The terms of the proviso in section 2, p. 85, Adj. Sess. Acts 1863, do not require a “printed notice.” Nor is a printed notice more requisite than a printed list, which is the essence of the notice and might be printed.

The Legislature evidently intended to provide for a written notice when a printed one was impracticable, as was the case in many counties during 1864. As to a title acquired by purchase at tax sale and its effects, see Stewart v. Parish, 6 Ohio, 474; Wallace v. Seymour, 7 Ohio, 156; Renick v. Wallace, 8 Ohio, 539; Douglas v. Dangerfield, 14 Ohio, 522; Milliken v. Sterling, 16 Ohio, 61; Gwynne v. Niswanger, 15 Ohio, 366; Abbott v. Lindenbower, 46 Mo. 291.

WAGNER, Judge, delivered the opinion of the court.

The plaintiffs brought their action in ejectment to recover the possession of certain lands lying in Schuyler county, and adduced a regular chain of title from the general government.

The defendants denied title and relied exclusively on a tax deed made by the county collector, on a sale of the land for delinquent taxes. On the trial no declarations of law or instructions were asked or given, and consequently there is nothing preserved in the record that we can review, except an objection made to the ruling of the court in admitting evidence. The court permitted the introduction and reading in evidence of the tax deed, against the objection of the plaintiffs, and this is the only error that we can notice. The only recital of any advertisement in the deed is that the collector proceeded by posting, in the most public place in each municipal township, one written notice containing a list of the land and the amount of taxes due and unpaid thereon, and for what years, etc.

The revenue law under which this land was attempted to be sold provides that “it shall be the duty of the collector to publish an advertisement in some newspaper published in his county having the greatest circulation, if any such paper there be; and if there be no such paper published in his county, then in the nearest newspaper in this State having the greatest circulation, which advertisement shall be once published, or, if so ordered by the County Court, by posting no less than one printed handbill or advertisement in each municipal township in the county where the lands are situate.” There is then an alternative provision, “that if, for any cause, the collector shall be unable to make the advertisement and notice aforesaid, such list may be published by one printed or written list, together with the notice above required, posted up at the door of the court-house in said county,” etc. (Adj. Sess. Acts 1863, p. 85, § 2.)

There is no pretense that an exigency arose which authorized the collector to act, or that he attempted to act under this latter clause. It is not shown that he posted up any notice at all at the court-house door. But the fact plainly appears from the recital, and is admitted and undisputed, that the advertisement was made in pursuance of the provision which empowered the collector to give the requisite notice by posting up handbills in a public place in each municipal township. The question presented for our decision, then, is whether the putting up of written notices was a...