Lowe v. Ekey
| Decision Date | 30 April 1884 |
| Citation | 82 Mo. 286 |
| Parties | LOWE v. EKEY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Franklin Circuit Court.--HON. A. J. SEAY, Judge.
REVERSED.
Crews & Booth for appellant.
The tax deed is void, and utterly insufficient to convey that part of the northwest quarter of northeast quarter, section fifteen, township forty-two, range one east, which lies north of the Union road, and west of the Atlantic & Pacific R. R., for the following reasons: 1. Because it does not purport to convey 13 15-100 acres in northwest quarter of northeast quarter of said section fifteen, lying north of said Union road, and west of said railroad, when the land sued for is but about half of the land in said northwest quarter of northeast quarter lying north of said Union road, and the deed does not indicate in what part of the tract north of the Union road the 13 15-100 acres are located. City of Jefferson v. Whipple, 71 Mo. 519; Nelson v. Goebel, 17 Mo. 161; Alexander v. Hickox, 34 Mo. 496. There was no evidence tending to show that the land was known by the description contained in said tax deed. The proceedings in tax sales are not viewed as on the same footing with proceedings on execution in ordinary suits. Blackwell on Tax Titles, p. 301, side page 304. See, also, Blackwell on Tax Titles, (3 Ed.) top pp. 379 to 381, side pp. 381 to 383 and top pp. 123 to 129, side pp. 124 to 130. 2. Because the description in the tax deed did not follow the description in the preceding tax proceedings. Appellant maintains that the tax deed not describing the land as west of the Atlantic & Pacific Railroad, it is a good conveyance of all the land north of the Union road, whether on the one side or the other of the railroad. But this position is clearly wrong. The tax deed must follow the assessment, judgment and execution. See Blackwell on Tax Titles, (3d Ed.) side p. 384, top p. 379. The assessment and all the subsequent tax proceedings under which the tax deed purports to be executed contained no adequate description of the lands, and were therefore void. There was no valid judgment rendered against the land for the taxes of 1874; the judgment book did not comply with the law, as it failed to contain a record of the delinquent list, did not set out any state, county or other tax, and did not show any petition for judgment to have been filed by the collector. Blackwell on Tax Titles, 197, 198. The special execution was void. Ewart v. Davis, 76 Mo. 129. The tax deed recited that the sale by the collector was made under an execution dated August 9th, 1875. There was no execution of that date, and said deed was, therefore, void. Williams v. McLanahan, 67 Mo. 499. The tax sale was illegal, and the tax deed void, for the reason that the statute required the quantity of each tract, which should be sold for the taxes of the whole tract, to be noted opposite the tract on the special execution in the column provided for that purpose, and the law was not complied with in this particular. 2 W. S., p. 1200, § 196; Donahue v. Hartless, 33 Mo. 335; Blackwell on Tax Titles (3rd Ed.) p. 301.
L. F. Parker for respondent.
The description in the tax deed and other proceedings, is not so indefinite as to render them void. Cooley on Tax, p. 284; Shaw v. Orr, 30 Ia. 355; Bosworth v. Dauzier, 25 Cal. 296; Dunden v. Snodgrass, 18 Pa. 15. Tax sales are like sales under execution, and it has always been the law of this state that however vague the description of the property given, if it could be identified when explained by facts aliunde, which facts were so generally known that the public would be presumed to know the property by the given description, then it was sufficient. Bates v. Bank of Mo., 15 Mo. 309; McPike v. Allume, 53 Mo. 551; Shewalter v. Pirner, 55 Mo. 218; Adkins v. Moran, 67 Mo. 100. A recital in a judgment that due notice had been given is conclusive. 2 W. S., p. 1192, § 193; Vorhees v. Bank, 10 Pet. 449; Raley v. Guinn, 76 Mo. 263. It is not necessary for the collector to file a formal petition for judgment in addition to the delinquent list. 2 W. S., p. 1199, § 192. The failure of the clerk to specify opposite the tract sold, that the whole of it was sold, is not such an omission or irregularity as to avoid the sale. Raley v. Guinn, supra; Negus v. Yancy, 23 Ia. 416; Wheaton v. Sexton, 4 Wheat. 403; Jackson v. Steinberg, 1 John. Ch. 143; Buchanan v. Tracy, 45 Mo. 437; Allen v. Moss, 27 Mo. 354; Scruggs v. Scruggs, 41 Mo. 242; Henderson v. Henderson, 55 Mo. 547; 66 Mo. 272. All the proceedings in this case show the identity of the tract actually sold and intended to be conveyed, and it is the same land sued for here, and it is included in the description in the tax deed. Evidence aliunde is admissible to show the identity of the tract where a tax deed conveys more than the officer had the power to convey. 2 A. K. Marsh (Ky.) 553. Irregularities will be disregarded. Thatcher v. People, 79 Ill. 597; Beers v. People, 83 Ill.; Goodwin v. Perkins, 39 Vt. 598; Adams v. Seymour, 30 Conn. 402; Huey v. Van Wie, 23 Wis. 613.
Action of ejectment for the recovery of the possession of the following described land situate in Franklin county, to-wit: “All that part of the northwest quarter of the northeast quarter of section 15, township 42, range 1, east, lying north of the Union Road, and west of the Atlantic & Pacific Railroad, (now St. Louis & San Francisco R. R.), and containing thirteen and 15-100 acres more or less.” The reliance of the defendant is the insufficiency of the proceedings which resulted in the sale of the land, as well as the insufficiency of the description of the land in the tax deed made by the collector. The land was described in this deed as being in Franklin county. The clause of the deed reciting the judgment in favor of the State, and against the land, describes the land as follows:
| Quantity. |
Parts of Sections, etc.
No. of Section.................
No. of Township............ No. of Range.................. Years for which taxes are due.......................... Amount of taxes, interest and costs................. Acres. 100ths. $ cts. 13
N. W. N. E. N. U. R.15 15 42 1E. 1874. 83 04 Clerk's fees.......... 10 Collector's fees....
10
And in the granting clause as follows, viz:
The assessment, as shown by the tax-book, described land as described in the deed, except that under the heading, “Parts of sections” etc., these letters were used: “N. W. N. E. N. Union R. W. A. & P. R. R.”
It is said in a work devoted to such subjects:
“The deed must give a certain description of the land conveyed, and conform in every respect to the mode of designation, pointed out by the local law of the State where it is executed, and of course, conform to the description adopted in the anterior proceedings. Blackwell on Tax Tit. 381. And it is held that the addition of a false particular in the description, which, in a deed between private individuals, might be rejected as surplusage, where the description without it would be certain, would vitiate the deed. Ib. In the case at bar, the description contained in the deed does not correspond with that adopted in the “anterior proceedings,” and this, of course, vitiates the deed, and if a portion of a description in a deed cannot be rejected as surplusage, neither can any portion of the description in the prior proceedings be held as surplusage, as this would overthrow the rule of conformity announced above. But the description of the land contained in the deed, and the prior proceedings, is bad for another reason, that of uncertainty....
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