Pitkin v. Reibel

• Decision Date: 19 May 1891
• Parties: PITKIN et al. v. REIBEL et al.
• Court: Missouri Supreme Court

16 S.W. 244

104 Mo. 505

PITKIN et al. v. REIBEL et al.

Supreme Court of Missouri, Division No. 2.

May 19, 1891.

ASSIGNMENT OF TAX CERTIFICATE — VOID TAX-DEED — RECOVERY OF TAXES.

1. The reveue act of Missouri of 1872 (2 Wag. St. c. 118, § 207) makes the certificates of purchase of lands at a tax-sale assignable "by indorsement thereon under the hand of the purchaser." Section 216 authorizes the collector to make a deed to the assignee, but requires the deed to recite the fact of the assignment; and section 217, prescribing the form of the deed, requires a recital that the indorsement was under the hand of the purchaser, written on the back of the certificate of purchase. Held, that a deed simply reciting that the purchaser had assigned to the grantees all his "right, title, and interest in and to said land" was void, as not substantially complying with the statute.

2. Under section 219, providing that if the holder of a tax-deed, or one claiming under aim by virtue thereof, be defeated in an action for the recovery of the land, he may recover of the successful party "the full amount of all the taxes paid by the tax purchaser at the time of the purchase, and all the subsequent taxes paid by him," recovery can be had for taxes paid by an assignee or person claiming under the purchaser.

3. Though the tax-deed is insufficient to carry title, still it is sufficient evidence of the assignment to enable the grantee to recover taxes paid.

Error to circuit court, Scotland county; BEN E. TURNER, Judge.

McKee & Jayne, for plaintiffs in error. John C. Moore, for defendants in error.

MACFARLANE, J.

Ejectment to recover possession of the N. E. ¼ of the S. E. ¼ section 19, township 66, range 10, in Scotland county. The petition is in the usual form. The answer denies certain allegations of the petition, pleads the 10-years statute of limitations; and sets up specially that plaintiff's claim of title was through a certain tax-deed, which is copied in full in the answer; alleges that the deed was void, and plaintiff acquired no title thereunder. Plaintiffs replied, admitting that their only claim of title was derived through said tax-deed, and asked, if their deed was ineffectual to pass the title, that they be given judgment for taxes paid on the land, penalties, and interest, and that it be declared a lien on the land. The S. ½ of said section 19, with other lands, was sold by the collector of the county of Scotland in October, 1872, for the taxes of the year 1871, and one M. Vogel became the purchaser of the whole tract for the sum of $28.96. On the 28th day of May, 1875, a deed was made by the collector to plaintiffs, as assignees of Vogel, the purchaser, which was duly recorded. The sale was made under the revenue act of 1872, which is chapter 118, 2 Wag. St. The deed was in exact conformity with the forms prescribed by section 217 of said act, except in two or three particulars, only one of which need be noticed. In case the certificate of purchase had been assigned by the purchaser, and the deed was made to the assignee, the following recitals were required by the act: "And whereas, the said ____ [purchaser] did, by his indorsement under his hand written on the back of the certificate of purchase to him executed for the tract of land so sold as aforesaid, at the time of said sale, said indorsement bearing date the ____ day of ____, 18 __, assign the said certificate of purchase to ____, [the assignee.]" The recital in the deed was as follows: "And whereas, said M. Vogel has duly assigned to Pitkin and Leslie all his right, title, and interest in and to said lands, acquired as aforesaid." Plaintiffs also proved the payment of taxes on this land by them for the years 1872, 1873, 1874, 1875, and 1876. The judgment was for defendants, and plaintiffs bring the case to this court by writ of error.

1. It has been held by repeated decisions of this court, giving construction to the revenue act of 1872, and other acts containing similar provisions, that where the statute prescribed a particular form, to be observed in the execution of a deed, that form becomes substance, and must be strictly followed, or the deed will be void. Williams v. McLanahan, 67 Mo. 499; Pearce v. Tittsworth, 87 Mo. 637; Hopkins v. Scott, 86 Mo. 143; Sullivan v. Donnell, 90 Mo. 281, 2 S. W. Rep. 264. BLACK, J., in construing the provisions of the charter of Kansas City, which requires the tax-deed to be, substantially, in the form prescribed, and makes it prima facie evidence of all its required recitals, says: "There can be no doubt that the deed, to be any evidence at all, must be in substantial compliance with the form. This is the criterion, established by the legislature, and we have no power to vary it." Section 207 of the act of 1872 makes the certificates of purchase assignable "by indorsement thereon under the hand of the purchaser." Section 216 authorizes the collector to make a deed to the assignee, but requires the deed to recite the fact of the assignment; and section 217, prescribing the form of the deed, requires a recital that the indorsement was under the hand of the purchaser, written on the back of the certificate of purchase. These requirements were not even substantially complied with in the deed under consideration. The deed simply recites that the purchaser had assigned to plaintiffs all his "right, title, and interest in and to said land." The assignee derives his right to a conveyance from the collector solely from the statute. The statute only authorizes such a conveyance upon the condition that the certificate is assigned, by indorsement in writing thereon, under the hand of the purchaser. The deed itself is required to furnish the evidence of the assignment. The deed totally failed to show any of the facts made necessary under the statute to authorize a conveyance to plaintiffs, and did not follow "as near as possible" the form prescribed. Under the authorities cited above, the deed must be held inoperative, as a conveyance of the land to plaintiffs.

2. The deed being void, the statute of limitations, provided by section 221 of the act of 1872, was never put in motion. Callahan v. Davis, 90 Mo. 81, 2 S. W. Rep. 216; Duff v. Neilson, 90 Mo. 93, 2 S. W. Rep. 222.

3. Plaintiffs having been properly defeated in their claim for the possession of the land, are they entitled to judgment for the amount of taxes paid, with penalties and interest, as authorized under sections 219, 2 Wag. St. 1206? The part of the section applicable is as follows: "And if the holder of a tax deed, or the party claiming under him by virtue of a tax-deed, be defeated in an action by or against him for the recovery of the land sold, the successful claimant shall be adjudged to pay such party claiming under the tax-deed, except in cases where the land was not subject to taxation, or the taxes for which the same was sold were paid before the sale, or it has been redeemed according to law, the full amount of all taxes paid by the tax purchaser on such lands at the time of the purchase, and all subsequent taxes paid by...