Manwaring v. Missouri Lumber & Mining Co.
| Decision Date | 22 December 1906 |
| Citation | 98 S.W. 762,200 Mo. 718 |
| Parties | JOSHUA MANWARING, Appellant, v. MISSOURI LUMBER & MINING COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Shannon Circuit Court. -- Hon. W. N. Evans, Judge.
Affirmed in part and reversed in part.
James Orchard and O. L. Haydon for plaintiff-appellant.
(1) The tax deeds of May 5, 1881, based on judgment for taxes against patentees and record owners when said taxes were assessed, is sufficient to vest in plaintiff the legal title as against defendant who claims under deeds the record of which was burned December, 1870, it not appearing that either the collector or purchaser at the tax sale had any notice of said deeds. Allen v. Ray, 96 Mo. 547; Payne v Lott, 90 Mo. 676; Evans v. Robberson, 92 Mo 192; Vance v. Corrigan, 74 Mo. 94. (2) Whether the sheriff's deed passed the legal title or not, defendant by his laches is estopped from setting up his title at this late day. Hequemborg v. Edwards, 155 Mo. 522; Bales v. Berry, 51 Mo. 449; Austin v Loring, 63 Mo. 22; Bispham's Principles of Equity (6 Ed.), secs. 39, 284; Tiedeman on Real Property (1883 Ed.), p. 544; Morrison v. Turnbaugh, 192 Mo. 447. (3) The court was correct in allowing taxes that had been paid out by the plaintiff and his grantors on the lands described in plaintiff's petition, for the reason that it was a lien on the land and paid by the purchasers in good faith, believing they had title to the land. (4) The sale under a judgment for back taxes under the revenue law of 1877 to enforce the tax lien is a judicial sale. State ex rel. v. Sargent, 12 Mo.App. 223. Where an action is wholly or part in rem, a sale under judgment or decree therein is a judicial sale. Tiedeman on Sales, sec. 256. A suit to foreclose a tax lien is an action in rem after the owners are brought in by process. The judgment is one in rem, the execution goes against the property, and the sheriff sells the property and not the interest of the particular party in it. Allen v. McCabe, 93 Mo. 139; Hilton v. Smith, 134 Mo. 499; Welshear v. Kelley, 69 Mo. 353. A sale by a public administrator, in executing an order of the probate court, is a judicial sale, and the general rule is that the purchaser at such sale buys at his peril. Estes v. Alexander, 90 Mo. 458. (5) There being no statutory law as in the case at bar, then equity says what shall be done, and that covers all such cases as the one we now have before us. The rule is laid down in Story about as follows: That if any case should happen which is not regulated by such express or written law it should have for law a natural principle of equity which is the universal law extending to everything. Story's Equity Jurisprudence (12 Ed.), sec. 4. (6) Taxation is supposed to be for the benefit of the person taxed; that for raising a general revenue is imposed primarily for his protection as a member of society, both in his person and his property in general, and hence the amount assessed against him to be charged upon his property, etc. Neenan v. Smith, 50 Mo. 529. Everyone must take notice that his property is assessed each and every year and his taxes become payable every year, and it is his duty to pay them promptly. Unpaid taxes constitute a lien on the land, which is prior and paramount to all other liens. Fleckenstein v. Baxter, 114 Mo. 496; McLean v. Martin, 45 Mo. 393; Wilchinsky v. Cavender, 72 Mo. 192; Cunningham v. Anderson, 107 Mo. 377; Newell on Ejectment, sec. 48. The rule is laid down that persons who have paid taxes are entitled to be reimbursed. Lington v. Copeland (S. C.), 10 S.E. 616; Schafer v. Causey, 76 Mo. 365.
John C. Brown and Orr & Luster for defendant-appellant.
(1) A deed once recorded is good against a deed subsequently made and recorded from the grantor, even if the record of the first deed was destroyed before the making and recording of the second. Crane v. Dameron, 98 Mo. 570; Greer v. Mo. Lumber & Mining Co., 134 Mo. 92; Wier v. Lumber Company, 85 S.W. 342. (2) A sheriff's deed based on a judgment for taxes does not pass the title of one not a party defendant in the tax suit, who claims under a deed recorded prior to the commencement of the tax suit, even if the record of said deed was destroyed before the institution of the tax proceedings. Crane v. Dameron, 98 Mo. 570; Greer v. Mo. Lumber & Mining Company, 135 Mo. 92; Wier v. Lumber Co., 85 S.W. 342. (3) That part of the judgment declaring a lien in favor of plaintiff for taxes paid is erroneous and should be reversed. The act of 1903, having been passed and approved since the institution of this suit, cannot affect the rights or interests of the parties thereto. Burkham v. Manewal, 94 S.W. 520; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376. (4) Prior to the passage of the act of March 6, 1903, no recovery could be had for taxes paid by one under circumstances similar to the case at bar. Burkham v. Manewal, 94 S.W. 520; Rowe v. Current River Land & Cattle Co., 99 Mo.App. 158; Carter v. Phillips, 49 Mo.App. 319; Petring v. Current River Land & Cattle Company, 85 S.W. 933. (5) Said act by its terms and provisions does not apply to the facts in this case under the pleadings and the plaintiff is not entitled to a lien for the taxes paid by him. The statute is in derogation of the common law and must be strictly construed. Laws 1903, p. 254; Petring v. Current River Land & Cattle Company, 85 S.W. 933; Carriage Co. v. Reid, 99 Mo.App. 415; Judson v. Smith, 104 Mo. 61; Thompson v. Union Elevator Co., 77 Mo. 520. (6) But the language of the act points to the future. It should be construed as prospective in its operation. By its terms it does not and under the Constitution it cannot act restrospectively so as to entitle the plaintiff herein to recover taxes paid prior to the passage of this act. Art. 2, sec. 15, Constitution; Petring v. Current River Land & Cattle Company, 85 S.W. 933; Gladney v. Sydnor, 172 Mo. 319; Leete v. State Bank, 115 Mo. 184; Reed v. Swan, 133 Mo. 101; State ex rel. v. Ferguson, 62 Mo. 77; State ex rel. v. Green, 78 Mo. 188; State ex rel. v. Thompson, 41 Mo. 25; Singer Mfg. Co. v. Schull, 74 Mo.App. 486. (7) Said act cannot have the effect of giving a right to recover taxes which have been paid more than five years prior to the commencement of this suit. Sec. 4273, R. S. 1899.
This cause is before this court upon cross appeals.
On the 2nd day of August, 1902, plaintiff instituted this suit under section 650, Revised Statutes 1899, to determine interests and quiet the title to several hundred acres of land described in the petition, of which he claimed to be the owner and to which he claimed to have title in fee simple, and alleging that the defendant claims some title, estate or interest in and to all of said lands adverse to the title of the petitioner.
On Septemebr 8, 1902, defendant filed its answer to plaintiff's petition in which it denied that plaintiff had any title or interest in said lands, and alleging title in defendant company.
On March 6, 1903, the Legislature passed an act, pp. 254-255, Laws 1903, which took effect June 21, 1903, "Relating to the setting Aside of Tax Deeds," which provides:
Thereafter on September 16, 1903, plaintiff filed an amended petition containing a second count, in which for the first time he claims that his title is based upon certain sheriff's deeds for taxes; that he and his grantor have paid a large amount of taxes on said lands for the year 1879 and up to and including the year 1898. He asks in this second count to be reimbursed for all taxes paid by him and that the amount so paid be declared a lien on the land, provided the court should find the...
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