Skinner v. Williams

• Decision Date: 30 April 1885
• Parties: SKINNER, Appellant, v. WILLIAMS.
• Court: Missouri Supreme Court

85 Mo. 489

SKINNER, Appellant,

v.WILLIAMS.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Karnes & Ess and R. H. Field for appellant.

The place, and only place for a tax sale, under the charter of Kansas City, is at the collector's office. Laws 1875, p. 232, sec. 45. The form prescribed requires that a tax deed shall affirmatively show, that the property therein conveyed was sold at public sale at the collector's office. Laws 1875, p. 237, sec. 64. Does it affirmatively appear from the face of this deed that the city auditor bid off the real property therein conveyed at the collector's office? We submit that it does not, and is, therefore, not good on its face, nor in conformity with the charter requirements. Thompson v. Merriam, 15 Neb. 498; Towle v. Holt, 14 Neb. 227, and cases cited; Park v. Tinkham, 9 Kan. 615; Shelly v. Towle, 20 N. W. Reporter 251; Vassar v. George, 47 Miss. 713; Culver v. Hayden, 1 Vt. 363-364; Yankee v. Thompson, 51 Mo. 239; Thompson v. Lawrence, 2 Baxt. (Tenn.) 415. The auditor had no right to bid it off for the city elsewhere. Cooley on Taxation, 338; Ruby v. Huntsman, 32 Mo. 501; Miller v. Corbin, 46 Ia. 150. When a tax deed is good and sufficient on its face to make it prima facie evidence of a good title it may be shown in opposition thereto by evidence aliunde, that the sale was actually void, but if a deed is not good on its face for any illegal recital, or for lack of an essential recital, the person claiming under the tax deed, cannot bolster it up or cure the defect on its face by evidence aliunde of the deed. Maxey v. Clabaugh, 1 Gilman (Ill.) 26; McDermott v. Scully, 27 Ark. 226; Pack v. Crawford, 29 Ark. 483; Grim v. O'Connell, 54 Cal. 522; Cartwright v. McFadden, 24 Kan. 662; Larkin v. Wilson, 28 Kan. 514-515; Lessee of Kellogg v. McLaughlin, 8 Ohio 116; Proprietors of Cardigan v. Page, 6 N. H. 182. And no presumption can be indulged to uphold the face of this deed (if it is defective) that the auditor was in attendance upon the sale at the collector's office when he made the bid recited, or that he entered the fact and date of his bid of record in the book of sales as required by law. Morton v. Reeds, 6 Mo. 64; Williams v. Underhill, 58 Ill. 137; Long v. Burnett, 13 Ia. 29; Hubbard v. Johnson, 9 Kan. 632; Yankee v. Thompson, 51 Mo. 238-9. The statute makes only a deed that is good on its face presumptive evidence that the things required by law to be done to warrant its execution, had been done. Laws 1875, sec. 64, p. 238; Cooley on Taxation, 332; Cunningham v. Ry. Co., 61 Mo. 33.

C. O. Tichenor for respondent.

The only fault found with the form of the deed is, that it does not show that the lot was bid off by the city at the collector's office. The deed does show that it was bid off for the city by the city auditor, at the direction of the comptroller; that it was offered for sale at the collector's office on January 15, 1876, between the hours of ten a. m. and five p. m.; and that inasmuch as it could not be sold for the amount of all taxes, interest, and costs, then due and unpaid upon said property, “at the place aforesaid,” it was bid off for the City of Kansas for such amount; and that thereupon the city auditor made record of the same in the book of sales, as required by law. The construction is technical, unfair and forced, and should not be adopted by this court. Giekie v. Kirby Carpenter Co., 106 U. S. 385; Mansean v. Edwards, 53 Wis. 461; Haynes v. Heller, 12 Kan. 381; Marshal v. Benson, 48 Wis. 558; Sams v. King, 18 Fla. 558. Certainly, under the provisions of the charter, the presumption must obtain that the officers did their duty. Biscoe v. Coulter, 18 Ark. 434; Hazzard v. Hancock, 39 Ind. 177. There is but one place of sale. In Nebraska there are several places, and hence the ruling of the Supreme Court. Halls v. Blaco, 10 Neb. 36. The sale to the city is not, strictly speaking, by bid (see authorities cited by appellant), it is what is generally termed a forfeiture, because of lack of a bidder. Hodgdon v. Wight, 36 Me. 338; Kittle v. Shervin, 11 Neb. 65; Wild v. Serpel, 10 Gratt. 408. The form for a deed in the charter does not contain any statement as to where the bid was made by the city, hence, if there is nothing in the deed showing it, the most that can be claimed from the omission is that the deed is not evidence of it. Abbot v. Lindenbower, 46 Mo. 295; Moss v. Shear, 25 Cal. 38; Bowman v. Cockrill, 6 Kan. 311. And appellant has supplied the omission by his testimony. Inasmuch as the competitive bidding was the matter in which the delinquent was interested, and no injury could arise to him, whether the city elected to consider the land forfeited to it either in the collector's office or outside of it. Biscoe v. Coulter, supra; Bowman v. Cockrill, supra, 325. By section sixty-five, persons calling in question the title or right of grantee in the tax deed, shall be required to prove, in order to defeat the same that taxes, interest, and costs were paid before sale; that the land was not subject to taxation; that it had been redeemed, or that there had been a tender of the redemption money. This provision in an act of congress was sustained by the Supreme Court of the United States in DeTreville v. Smalls, 98 U. S. 517, and in Keely v. Saunders, 99 U. S. 441.

HENRY, C. J.

This is an action of ejectment for the recovery of a lot or parcel of land lying in the City of Kansas. The petition is in the usual form, and in addition to a general denial the answer sets up title in defendant, under a deed from the city collector to one W. E. Sheffield, which was made and executed under a sale of the same for city taxes, which deed was recorded in the office of the recorder of deeds of Jackson county, more than three years before the commencement of this suit. Defendant claims under Sheffield, grantee in the tax deed.

Conceding that but for the tax sale and deed, plaintiff is entitled to recover the land, the question arises, is plaintiff barred by the special statute of limitations contained in section sixty-six, article six, of the charter of the City of Kansas, which is as follows: “Any suit or proceeding against the purchaser at a tax sale, his heirs or assigns, for the recovery of the real property, or any interest therein sold for taxes, or to defeat, or avoid a sale, or conveyance of real property sold for taxes under the provisions of this act, shall be commenced within three years from the time of the recording of the tax deed and not thereafter.” Section sixty-eight, article six, of said charter, reads as follows: “Any person putting on record a tax deed, executed substantially as provided for in this act, shall be deemed to have set up such a title to the real property described in such deed as will enable the party claiming to own such real property to maintain an action for the recovery of the possession thereof against any person claiming under the tax deed, whether such person is in actual possession of the lands or not.”

It has been decided by this court at the present term, that a tax deed void upon its face will not set the special statute of limitations in motion, whether the grantee in the tax deed entered upon and held possession of the property for three years or not, but that a tax deed good upon its face will set the statute in motion. Mason et al. v....