Parsons v. Viets
| Decision Date | 20 November 1888 |
| Citation | 9 S.W. 908,96 Mo. 408 |
| Parties | Parsons, Trustee, Appellant, v. Viets |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. John A. Lacy, Special Judge.
Affirmed.
E. J Smith for appellant.
The possession of one who goes in simply and solely under a purchase of land possessed at a tax-sale, and before he receives a deed therefor and before the expiration of the time for redemption has expired is not adverse possession. Pease v. Lawson, 33 Mo. 35; DeGraw v Taylor, 37 Mo. 310; Tyler on Eject. [1 Ed.] 876, 877 878, and cas. cit.; Jackson v. Thomas, 16 Johns. 292; Jackson v. Frost, 5 Cowen, 346; Hoyt v. Dillon, 19 Barb. 644; Jackson v. Camp, 1 Cowan, 605.
John C. Orrick, also, for appellant.
The acceptance by Thompson of the tax-deed at the expiration of the two years (the period for redemption) under and pursuant to the tax-certificate, was an admission by him that his possession prior to the acceptance of such deed was subject to plaintiff's title and not adverse, although the tax-deed was in fact void on its face. Woods v. Dille, 11 Ohio 455; Jackson v. Creal, 13 Johns. [N. Y.] 116; Walbrun v. Ballen, 68 Mo. 167, 168; Blackwell on Tax Titles [4 Ed.] 299, 300.
Geo. P. B. Jackson for respondent.
(1) The court did not err in refusing plaintiff's instructions. (a) There was no evidence upon which to found them. Brown v. Ins. Co., 86 Mo. 51; Price v. Railroad, 77 Mo. 508; Chubbuck v. Railroad, 77 Mo. 591. (b) The defendant and his grantor had been in the actual, visible and notorious possession of the land for more than ten years before this suit -- having taken and held the possession, claiming to be the owner of the land, adversely to and to the exclusion of everybody else. This vested the title in defendant. Bank v. Evans, 51 Mo. 335; Shepley v. Cowan, 52 Mo. 559; Barry v. Otto, 56 Mo. 177; Ridgeway v. Holliday, 59 Mo. 444; Bledsoe v. Simms, 53 Mo. 305; Bradley v. West, 60 Mo. 33; Dalton v. Bank, 54 Mo. 105; Hamilton v. Boggess, 63 Mo. 233; Swensen v. Lexington, 69 Mo. 157; Lynde v. Williams, 68 Mo. 360; Allen v. Mansfield, 82 Mo. 688; Farrar v. Heinrich, 86 Mo. 521; Ekey v. Inge, 87 Mo. 493. (2) The statute begins to run as soon as a cause of action accrues. Tapley v. McPike, 50 Mo. 589. (3) A purchaser at tax-sale under the law of 1872 did not acquire any right or title in the land until after he received a deed. The certificate only gave him the right to receive his money with interest and penalties, or, if there was no redemption within two years, to receive a deed and thereby acquire the title to the land. Until the deed was made the title remained in the former owner. Donohue v. Veal, 19 Mo. 331, 335; 2 Wag. Stat. secs. 206, 208. He had no right of possession prior to receiving a deed. His entry upon the land before deed would be a trespass, for which he would be liable to an action by the owner. Cooley on Tax. sec. 9, p. 368; Shallmuller v. McCarty-55 Pa. St. 186; Dalton v. Fenn, 40 Mo. 109.
This is an action of ejectment to recover possession of the northeast quarter of section 27, township 47, range 22, in Pettis county. The petition was filed the seventeenth of February, 1885. The answer, besides being a general denial, sets up as a bar to plaintiff's right to recover, the ten-year statute of limitations; it also pleads that the defendant claims under Newton Thompson and H. P. Townsley, who purchased the land as averred, at a tax-sale made in October, 1874, and received tax-deeds therefor on the fifth of February, 1877, which were recorded on the same day in the office of the recorder of deeds for Pettis county, and sets up as a bar, the three-year statute of limitations. The answer was denied by replication.
On the trial, judgment was rendered for the defendant, from which plaintiff has appealed and assigns for error the action of the court in refusing the instructions asked by plaintiff. In support of plaintiff's title, he put in evidence deeds, showing that the land in dispute was entered by or bought from the United States, by Peter M. Brown, and by him conveyed to A. M. McPherson, and by him conveyed to Wm. M. McPherson, all before 1860. It was also shown that Wm. M. McPherson died in 1872, leaving a will, which was duly probated, and letters testamentary granted to plaintiff. Said will devised the land to plaintiff, as trustee, with full power to possess and hold the same, and to sue for and recover the same.
Defendant, in support of his title, offered in evidence the tax-deeds, which, upon being objected to by plaintiff, the court held them to be void and inadmissible, either for the purpose of showing title, or for the purpose of showing that such title constituted a bar with possession thereunder, under the three-year statute of limitations, but also held that they could be received in evidence to show color of title. The defendant excepted to this ruling, and it does not satisfactorily appear that he either offered or read the deeds in evidence for any purpose. Defendant put in evidence a deed from Henry P. Townsley and Menter Thompson, dated March --, 1882, conveying the land in question to defendant.
Said Thompson was then introduced as a witness and testified that the purchase of this land at tax-sale was a joint venture of himself and Mr. Townsley from the first; that for convenience, he took the certificate of purchase to himself and then afterwards, he cannot tell when, save that it was before the tax-deed was executed, he assigned a one-half interest in the certificate to said Townsley; that in the fall of 1874, some time after he bought the land for taxes he contracted with one Forbes, who then lived on the quarter section adjoining this on the west, to take possession of and enclose this land. It was to be fenced with a good enough fence so as to keep stock off it, for which Forbes was to have the use of the land and the grass on it the next year, it being prairie; that he did so because he wanted to get into possession of it under his tax purchase; that Forbes enclosed the land and held possession of it under said arrangement until March, 1876, when witness sold the land to defendant Viets, who then went into possession under a title bond from witness and Townsley, and afterward, they conveyed to him as shown by the deeds; that he had no other claim or title on said land, save under said tax purchase; that he took possession as soon as possible in order that he might start the statute of...
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