Pearce v. Tittsworth

• Decision Date: 31 October 1885
• Citation: 87 Mo. 635
• Parties: PEARCE, Appellant, v. TITTSWORTH.
• Court: Missouri Supreme Court

87 Mo. 635

PEARCE, Appellant,

v.TITTSWORTH.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Schuyler Circuit Court.--HON. ANDREW ELLISON, Judge.

REVERSED.

Higbee & Raley for appellant.

(1) The recitals in the tax deed fail to show a compliance with the requirements of the statute. W. S., p. 1207, sec. 223. The deed nowhere recites a sale to any one, nor does it state who issued the certificate of purchase, nor are its date or contents given, nor the substance of the order given to Hines. These are fatal defects. Willams v. McClanahan, 67 Mo. 499. (2) The collector must be held to a strict performance of every pre-requisite of the statute before the title of the citizen to the property can be taken away. Abbott v. Doling, 49 Mo. 302; Wellshear v. Kelly, 69 Mo. 353. (3) Where the law declares a form for a tax deed it must be substantially, if not literally pursued, or the deed will be void. Lain v. Cook, 15 Wis. 446; Lain v. Shephardson, 18 Wis. 59; Cutler v. Hurlbert, 29 Wis. 152; Wakely v. Mohr, 18 Wis. 321. (4) A tax deed, void on its face, will not start the statute of limitations in favor of the holder when not in possession. Burroughs on Taxation, sec. 812. The tax deed being void on its face, plaintiff's action is not barred by the special statute of limitations. W. S., sec. 22, p. 1207; Cooley on Taxation, 379; Wofferd v. McKinna, 23 Tex. 36; McMillan v. Wehle, 55 Wis. 685; Dalton v. Lucas, 63 Ill. 337; 27 Minn. 449; 19 N. W. Rep. 83; 29 Wis. 152.Shelton & Dysart for respondent.

(1) The recitals in the tax deed were a sufficient compliance with the statute. Raley v. Guinn, 76 Mo. 263. (2) The three years special statute of limitations bars plaintiff's recovery. Jackson v. McGruder, 51 Mo. 55; Lorg v. Higgenbotham, 56 Mo. 245; Hamilton v. Boggess, 63 Mo. 233; Crispen v. Hannovan, 50 Mo. 536; Dalton v. Bk., 54 Mo. 105. (3) The action was brought by the original owner of the land out of possession and against the subsequent owner by tax deed, and in the actual adverse possession of the lands, hence the special statute of limitations applies. Spurlock v. Dougherty, 81 Mo. 171. (4) Under the statute, the special statute of limitations begins to run in favor of the purchaser at the sale for taxes from the recording of the deed. W. S., p. 1207, sec. 222; Cooley on Tax., pp. 377-8; Robb v. Bowen,9 Pa. St. 7; Sheik v. McElroy,20 Pa. St. 25; Doan v. Early, 15 Wis. 100. (5) The judgment of the county court being regular on its face imports the same verity that a judgment of the circuit court does, and is conclusive of everything necessary to the rendition of a valid judgment in a collateral proceeding like this. Raley v. Guinn, 76 Mo. 263.

RAY, J.

This is an action of ejectment, brought January 10, 1881, in the circuit court of Schuyler county for one hundred acres of land in said county. Plaintiff showed a regular chain of title. Defendant claims title under a tax deed of forfeited lands to W. C. McBee, for taxes for 1872, executed and recorded December 6, 1876, and pleads the special statute of limitations under section 221, page 1207, Wagner Statutes.

The undisputed facts, as shown by the record, are: The land in controversy was entered in 1847 and 1852 by Robert and John Fugate, who fenced the eighty acre tract in 1854 and put forty acres of it in cultivation. They conveyed to Y. W. Payton in 1865. He conveyed to J. W. Hinch, who conveyed to plaintiff in 1869. This eighty acres remained inclosed and in cultivation and in the actual possession of the Fugates and their aforesaid grantees until 1867, when the fences were removed and the land lay uninclosed until April, 1878, during which interval no one was in actual possession. In April, 1878, defendant, for the first time, entered, took possession and inclosed the eighty acre tract, broke up about sixty acres of it, and has remained in possession. The twenty acre tract lies about two miles from the eighty tract. It is timber land. Defendant offered in evidence the aforesaid tax deed, to the introduction of which various objections were made by plaintiff, all of which were overruled and the deed was admitted. Defendant next read in evidence a deed from McBee's administrator to himself, dated March 22, 1878. Certain instructions were asked by plaintiff and refused. The finding and judgment were for defendant. Motion for new trial was filed and overruled, and plaintiff brings the case to this court by appeal.

It will be seen, therefore, from the foregoing statement, that there are two questions submitted and calling for our determination in this case: (1) Whether said tax deed is void upon its face, and (2) whether plaintiff's action is barred by limitation under section 221, Wagner Statutes, page 1207. What we deem for the present purpose the material part of said deed is as follows: “* * * And, whereas, on the twenty-eighth day of November, A. D., 1874, said tracts of land were sold by the collector of Schuyler county, Missouri, for the taxes, interest and costs and penalty, due thereon for the year aforesaid and including also the taxes due for the years 1870, 1871 and 1873, to the state of Missouri and the county of Schuyler, the whole amounting to $55.70, said sale being made according to law, on the order of the clerk of the county court, given to Joseph C. Hiner, who received a certificate of purchase, which certificate was by him, on the thirtieth day of October, 1875, assigned in writing to Wm. C. McBee.”

Said tax deed was for forfeited lands for the taxes of 1870, 1871 and 1873, and was made or sought to be made under section 223, Wagner Statutes, page 1207, which provides: “If any person shall desire to * * * purchase any tract of of land * * * forfeited to the state, he shall apply to the county clerk, who shall issue his order to the county collector, directing him to receive from such person the amount due on said tract, * * * particularly describing the property and setting forth the amount due, and upon presentation of said order to the county collector, he shall receive said amount and give the person duplicate receipts therefor, setting forth a proper description of the property and the amount received; one of which shall be countersigned by the county clerk, and when so countersigned, shall be evidence of the * * * sale of the property therein described * * * but no such receipt shall be valid until it is countersigned by the county clerk. The other receipt shall be filed by the county clerk. * * * In cases of sale the collector and clerk shall make the receipt in the form of a certificate of purchase.” Section 217, Wagner Statutes, page 1205, prescribes the form of tax deeds therein contemplated and says the same “shall conform as near as possible” to the form therein prescribed.

We may refer in this connection to what this court has heretofore said, that “when the statute prescribes the particular form to be observed in the execution of the deed, that form becomes substance and must be strictly pursued or the deed will be void.” Williams v. McLanahan, 67 Mo. 499. The provisions of the statute are mandatory, and while the deed need not recite literally the language of the statute, its recitals must show a strict compliance with the substantial requirements thereof. We think it at least doubtful whether the recitals in the deed, as the same are printed and punctuated in the abstract and briefs on both sides, expressly show that there was a sale by the...