Smith v. H. D. Williams Cooperage Co.

• Decision Date: 17 March 1903
• Parties: SMITH v. H. D. WILLIAMS COOPERAGE CO.
• Court: Missouri Court of Appeals

73 S.W. 315

100 Mo. App. 153

SMITH v. H. D. WILLIAMS COOPERAGE CO.

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

BILL OF EXCEPTION—EXTENDING TIME FOR FILING—PRESUMPTION—TAX SALE — RECOVERY OF LAND — LIMITATIONS — REIMBURSEMENT FOR TAXES.

1. Though an order in vacation extending the time for filing a bill of exceptions does not show for what cause the extension was granted, it will be presumed to be "for good cause shown," as authorized by Rev. St. 1899, § 728.

2. A tax deed, which on its face shows that two tracts of land were sold at one time and for a gross sum, is void, under Act March 30, 1872, § 189 (2 Wag. St. p. 1198), requiring each tract to be offered separately.

3. A tax deed void on its face will not set in motion the statute of limitations of three years (Act March 30, 1872, § 221; 2 Wag. St. p. 1207) for recovering land of a tax purchaser.

4. The provision of Act March 30, 1872, § 219 (2 Wag. St. p. 1206), for the purchaser of land for taxes holding the land till remunerated for taxes, etc., applies only when, in a suit in ejectment, the owner succeeds in recovering possession from the person in possession under a tax deed.

Appeal from Circuit Court, Butler County; Jas. L. Fort, Judge.

Action by John N. Smith against the H. D. Williams Cooperage Company. Judgment for plaintiff. Defendant appeals. Reversed.

The suit was begun before a justice of the peace to recover one car load of stave bolts, alleged to be of the value of $75, and alleged to have been shipped to defendant from Hendrickson by one Robert Byrkett on or about the 1st day of December, 1900. After the service of summons on defendant, but before the day set for trial, defendant filed the following affidavit with the justice: "Now comes John Runnette, in the above-entitled cause, in behalf of defendant herein, and says that the timber in question was cut on the land belonging to him, and that he had sold said timber to Robert Byrkett, the grantor of defendant herein, and that the said J. N. Smith does not own the land from which said timber was cut, and the question to be decided in this cause is one affecting the title to the land on which said timber was cut. John Runnette, per M. R. Lare, Agt."—and moved that the cause be certified to the circuit court, which was done. In the circuit court the issues were submitted to the court, sitting as a jury.

Plaintiff, to sustain the issues on his part, offered the following evidence:

First. The evidence of plaintiff, who testified as follows: "I am in possession of the north half of the northeast quarter of section twenty-eight, and the north half of the northwest quarter of section twenty-seven, township twenty-six north, range five east. The stave bolts replevied in this action were made by W. R. Byrkett from white oak trees that were growing upon that tract of land, and the staves, when made, were sold by Byrkett to the defendant. The bolts sued for were worth more than seventy-five dollars. The timber was cut without my knowledge, permission, or consent. I have claimed to own the land since I purchased at tax sale in September, 1878. I paid the taxes one or two years, and would have paid all of the taxes, but found, on application to the collector, other parties had paid them. The land from which these stave bolts were cut adjoins my home place, upon which I have lived for forty years. My home place is the northeast quarter of section twenty-seven, township twenty-six north, of range five east. Since I purchased at tax sale, in 1878, I have used the land that I then bought for the purpose of cutting wood for fuel and fence rails, in connection with my home place—for all such purposes as land not inclosed or improved is usually used in connection with other land. When the parties who cut this timber, which was afterwards replevied, were cutting, I went to them and told them not to cut; that the land was mine, and not to move the timber." On cross-examination the plaintiff testified: "I neither own nor claim any land in section twenty-eight, other than the north half of the northeast quarter. That on the north half of the northwest quarter of section twenty-seven, and the north half of the northeast quarter of section twenty-eight, township twenty-six north, range five east, there was never any improvement, inclosure, or structure, but the land was and always has been quite wild. I claim title to the land from which this timber was cut by virtue of a tax deed dated September 17, 1878, made by the state of Missouri, through Charles W. Addy, collector of Butler county, and recorded September 20, 1878, in Book M, at page 213. I have no other claim on the land or timber."

Second. The following tax deed:

"Know all men by these presents, that, whereas at the July adjourned term, 1875, of the county court of Butler county, Missouri, a judgment was obtained in said court in favor of the state of Missouri, against the following described tract of land, situated in said county of Butler and state of Missouri, viz.:

                =========================================================================================================================
                 No. of Tract.;|                | Parts of Sections, |           |           |        |                 |
                               | Quantity;      | numbers of Surveys |           |           |        |                 |
                               | Acres 100ths.; | Towns, Cities and  |           |           |        |                 |
                               |----------------|    Additions.      |           |           |        |                 |
                               |                |                    |   Section.| Township. | Range. | Years for which | Amt. of taxes
                               |                |                    |           |           |        | taxes are due   | interest, costs
                               |                |                    |           |           |        |                 | and penalties
                ---------------|----------------|--------------------|-----------|-----------|--------|-----------------|----------------
                        1      |     80         |     N 1/2 NW 1/4   |     27    |    26     |   5    |        1874     |     $3.97
                        2      |     80         |     N 1/2 NE 1/4   |     28    |    26     |   5    |        1874     |      3.86
                               |                |                    |           |           |        |                 |    ______
                               |                |                    |           |           |        |                 |     $7 83
                -------------------------------------------------------------------------------------------------------------------------
                

"For the sum of money set opposite each tract of land respectively, in the above tabular statement, being the amount of taxes, interest and costs assessed upon said tracts, respectively, for the years set forth opposite each tract in the above tabular statement, and amounting in the aggregate to seven dollars and eighty-three cents. And, whereas, on the fifth day of October, A. D. 1875, Charles W. Addy, collector of the county aforesaid, by virtue of a special execution, issued out of the county court of the county aforesaid, dated the thirty-first day of August, A. D. 1875, and to the collector of said county directed, did expose to public sale, at the courthouse door in the county aforesaid, in conformity with all the requisitions of the statute, in such case made and provided, the tracts of land above described, for the satisfaction of the judgment so rendered as aforesaid. And whereas, at the time and place aforesaid, John N. Smith, of the county of Butler and state of Missouri, having offered to pay the aforesaid sum of seven dollars and eighty-three cents for all of the first tract, above tracts or parcels of land, to wit:

"The north half of the northwest quarter of section twenty-seven (27) and the north half of the northeast quarter of section twenty-eight (28) all in township twenty-six (26) range five (5) east, which was the last quantity bid for. The fractional portion of each above-described tract was stricken off and sold to John N. Smith.

"Now therefore, I, Charles W. Addy, collector for Butler county, for and in consideration of the premises and the sum of seven dollars and eighty-three cents, to the collector of said county as aforesaid, in hand, paid by the said John N. Smith at the time of the aforesaid sale, and by virtue of the statute in such cases made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said John N. Smith, his heirs and assignees, the above-described tract of land, viz.:

                -------------------------------------------------------------------------------------------------
                  No. of Tract.; |                 |     Parts of Section, number of  |          |       |
                                 |                 |      Surveys, Towns, Cities and  |          |       |
                                 |                 |      Additions.                  |          |       |
                                 |  Acres.100ths.; |                                  | Section. |  Twp. | Range
                -----------------|-----------------|----------------------------------|----------|-------|-------
                                 |        80       |           N 1/2 NW 1/4           |    27    |  26   |   5
                                 |        80       |           N 1/2 NE 1/4           |    27    |  26   |   5
                =================================================================================================
                

"To have and to hold unto John N. Smith and his heirs and his assignees forever; subject, however, to all rights of redemption by law.

"In witness whereof, I, Charles W. Addy, collector as aforesaid, by virtue of this authority aforesaid, have hereunto subscribed my name and affixed my seal this 7th day of September, A. D. 1878.

                   "[Seal.]          Charles

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