Large v. Fisher

• Decision Date: 31 January 1872
• Citation: 49 Mo. 307
• Parties: JAMES LARGE, Respondent, v. DAVID FISHER, Appellant.
• Court: Missouri Supreme Court

49 Mo. 307

JAMES LARGE, Respondent,

v.DAVID FISHER, Appellant.

Supreme Court of Missouri.

January Term, 1872.

Appeal from Crawford Circuit Court.

A. Budd, for appellant, relied on Enstein v. Gay, 45 Mo. 62.

Chas. Jones, for appellant.

The deed does not contain the necessary recitals to make it a valid deed, and is void and inoperative. (Enstein v. Gay, 45 Mo. 62.)

A. J. Seay, or respondent.

Appellant was upon the land without the authority of any one, without color of title, and without permission of the former owner, and cannot interpose against respondent. He cannot take advantage of his own wrong.

The recitals of the deed conform to the law. (Sess. Acts 1863-4, art. I, pp. 88, 89, §§ 20-22.)

As to the title vested in the State after forfeiture, see sections 32, 40 and 41 of said act. By section 32 the State had title to convey, sufficient to defeat possession of a trespasser. Under the provisions of section 40 the sale was made, and by virtue of section 41 the deed was made. See also section 50; and see further sections 110-12, 116, 119, 121, 123; Wagn. Stat. 1204 et seq.

Counsel commented upon Witherspoon v. Duncan, 4 Wall. 210, in regard to the validity of a judgment against the land.

ADAMS, Judge, delivered the opinion of the court.

This was ejectment for lands in Crawford county. The only title offered by the plaintiff was a tax deed executed to him by the collector of Crawford county. The defendant demurred to the evidence, but the court overruled the demurrer and gave judgment for the plaintiff for possession, etc.

There are numerous objections to this deed which render the deed void upon its face. For the purposes of this case it is only necessary to specify one. This was a sale of land on the forfeited list, and the statute requires that notice of such sale shall be by “at least four weeks' public notice by publication in a newspaper published in the county, having the greatest circulation; or, if there be no newspaper published in the county, then by publication in the nearest newspaper published to said county, and by posting up at least twenty written or printed handbills in twenty public places in said county, setting forth that all the lands and town lots forfeited to the State and remaining unredeemed and unsold will be, on the first Monday in October then next, offered for sale at public auction, at the court-house door in said county, and that a list of such forfeited real estate is kept in the office of the clerk of the County Court of said county, subject to the inspection of all persons wishing to examine the same.” (See Sess. Acts 1864, p. 91, § 35; Gen. Stat. 1865, p. 129, § 119.)

This deed merely recites that the collector gave at least four weeks' public notice by publication and advertisement “in manner and form as directed by law.” It is the duty of the collector to set forth in his deed how and in what manner the notice was given, so that it may appear on the face of the deed that all the prerequisites of the statute were strictly complied with. The recital of the collector that it was done “in manner and form as directed by law” is only his opinion or conclusion, which may or may not be correct.

A regular notice, published as the...