Spurlock v. Dougherty

• Decision Date: 31 October 1883
• Citation: 81 Mo. 171
• Parties: SPURLOCK, Plaintiff in Error, v. DOUGHERTY et al
• Court: Missouri Supreme Court

81 Mo. 171

SPURLOCK, Plaintiff in Error,

v.DOUGHERTY et al

Supreme Court of Missouri.

October Term, 1883.

Appeal from Pettis Circuit Court.--HON. J. P. STROTHER, Judge.

AFFIRMED.

J. P. Ross, O. A. Crandall and R. F. Walker for plaintiff in error.

The tax deed offered in evidence sufficiently conforms to the requirements of the statute. 2 Wag. Stat., p. 1205, § 217. It is no objection that the judgment for the sale of the land was rendered at an adjourned term of the county court. The statute provides for this. 2 Wag. Stat, p. 1196, § 183. This case is governed by section 184, 2 Wagner's Statutes, 1196, and not by section 188. All business transacted at an adjourned term of the county court is as valid as if done at a regular term. Higgins v. Randall, 13 Mo. 205; Wag. Stat., p. 442, § 18. It was not necessary to recite the precise day of rendering the judgment. That could be readily ascertained by inspection of the record. Warren v. Sharp, 53 Mo. 589; Davis v. Peveler, 65 Mo. 189. Defendant's entry and right of action was barred by the three years' special limitation. 2 Wag. Stat., p. 1207, § 221. Under proper instructions plaintiff would have recovered on his prior possession.

Philips & Jackson for defendants in error.

The tax deed was properly excluded, for the following reasons: (1) The statute directs the county collector to make the sale and execute the deed. Sec. 216, vol. 2, 1872. The deed shows on its face that it was made by the county treasurer as ex-officio collector. Under the general statute they are separate offices. Stat. 1872, vol. 2, p. 1178. There is but one contingency, under the law, at the time of making the deed, under which the duties of collector could be exercised by the treasurer, and that was the instance of township organization in the county. But courts will not take judicial notice of this, and it must be brought to their notice by extrinsic evidence. Robinson v. Jones, 71 Mo. 582; Ober v. Pratt, 1 Mo. 80; Summers v. Tice, 1 Mo. 349; Gorman v. Railroad Co., 26 Mo. 453; Southgate v. Railroad Co., 61 Mo. 90, 95. (2) The deed shows on its face that the judgment was rendered at the August adjourned term, 1872, of the county court. There is no such term known to the law, for rendering judgments in tax cases. The third Monday in July is designated by the statute as a special term for rendering such judgments. Rev. Act 1872, § 182. If the collector is prevented from obtaining judgment at such term, he may do so at any subsequent regular term. Sec. 188. The cases of Warner v. Sharp, 53 Mo. 598, and Davis v. Peveler, 65 Mo. 189, are not in point. They were proceedings for the foreclosure of school mortgages under the school law. No notice of application for judgment was necessary, and judgment might be rendered in the form of an order, at a general or adjourned term, as other ordinary county business is transacted. Hurt v. Kelly, 43 Mo. 238. The recitals of such deeds are always, as they should be, strictly construed. The notice on which judgment was rendered says it was at the August adjourned term. No day or week is given. No land owner could know when such court would be held. No judgment could be rendered on such notice, nor at such a term as that recited in this deed. This notice, so the deed says, gave only the time and place of sale, but it did not advise anybody that this land would be exposed to sale, nor for “the amount of taxes, interest and costs due thereon.” It appears from the deed that the sale was made on the 14th day of October, but the deed does not recite that the collector gave notice that he would sell on the 14th day of October. (3) The deed does not show that any taxes were ever assessed against this land, as the law requires it should. Sec. 217. So far as the recitals of the deed were concerned, the tax may have been a personal tax, and not a tax on the land. Hubbard v. Johnson, 9 Kas. 632. (4) The statute provides that each tract of land shall be charged with its own taxes, and be sold separately for the same. Cooley on Taxation, 342; Hayden v. Foster, 13 Pick. 492; State ex rel. v. Sargent, 76 Mo. 557. This deed shows that several distinct tracts of land were included in the judgment and sale, tracts belonging to different owners. (5) Under the statute the purchaser was not entitled to a deed until the expiration of two years after the completion of the sale. It should, therefore, affirmatively appear, when the purchaser offers such deed in evidence, that the statutory period had elapsed. There is nothing on the face of the deed to show when it was, in fact, made. While the testatum recites October 16th, 1874, such deed can become operative only by virtue of the acknowledgment made in pursuance of the statute. 57 Mo. 552; Dunlap v. Henry, 76 Mo. 106. To determine when it was executed, reference must be had to the certificate of acknowledgment. In this certificate the day of the month is blank. Bull v. Griswold, 19 Ill. 634, top p. (6) The certificate of acknowledgment is not in conformity to section 217 of the statute, nor does the testatum of the clerk comply with the form given in said section. Blackwell Tax Titles, p. 406, § 5; Williams v. McClanahan, 67 Mo. 501; Abbot v. Doling, 49 Mo. 302; Cooley on Tax., 334, 335, 336; Ewart v. Davis, 76 Mo. 129. The statute, limiting suit for recovery, or to avoid a sale or conveyance of lands for taxes (§ 221) to three years from the recording of the tax deed, has no application to the facts of this case. It does not apply to the case of a void deed, nor where the land is unoccupied. Lain v. Shepherd, 18 Wis. 59; Cutter v. Hurlbut, 29 Wis. 152; Taylor v. Miles, 5 Kas. 512; Shoot v. Walker, 6 Kas. 65; Groesbeck v. Seely, 13 Mich 330; Hall v. Rittenhouse,19 Pa. St. 10; McReynolds v. Longenberger,57 Pa. St. 29; Miller v. Corbin, 46 Iowa 150; Moore v. Brown, 11 How. (U. S.) 414. There was no occupancy of the land. Herding cattle upon open land is but fictitious occupancy, and is not indicative of a change of proprietorship. Bradstreet v. Kinsella, 76 Mo. 63; Woodworth v. Fulton, 1 Cal. 310; Polack v. McGrath, 32 Cal. 15; 4 Cal. 94. There must be that in the appearance of the premises themselves to show to the world that there is still a person in possession. S. W. V. R. R. & C. Co. v. Quick,68 Pa. St. 189; Empson v. Giberson, 1 Dutcher 1; Crispin v. Hannavan, 50 Mo. 536; Cooper v. Ord, 60 Mo. 421. Dougherty and Murphy entered as purchasers under Parker, and he had no notice whatever of any occupation. This would protect his tenants and vendees. Bartlett v. Glasscock, 4 Mo. 62; Lemay v. Poupenez, 35 Mo. 71. Defendants took possession of the land under color of title, so that they could not be treated as trespassers by anybody save the true owner. Rannels v. Rannels, 52 Mo. 108, 112.

EWING, C.

This is an ordinary suit in ejectment, charging an unlawful entry, and wrongful holding possession of the land sued for, on the 1st day of March, 1878.

The defendants' answer was a general denial of all plaintiff's allegations, except that defendant was in possession of the premises sued for. Plaintiff offered to read the following deed:

TAX DEED.

STATE OF MISSOURI,

)

County of Pettis.

)

Know all men by these presents, That whereas, at the August (adjourned term) A. D. (1872), eighteen hundred and seventy-two, of the county court of Pettis county, a judgment was obtained in said court, in favor of the State of Missouri, against the following described tracts of land, situate in Pettis county, State of Missouri, to-wit: The southwest quarter and the south half of the northwest quarter of section No. 10, in township forty-three (43), range twenty-three (23), for the sum of forty dollars and twenty-five cents ($40.25), assessed to Emily Morrison, for taxes due for the year 1871. Also against the southwest quarter of the southwest quarter of section No. 1, township 43, range 23, for the sum of twenty-four dollars. Also against the northeast quarter of the southwest quarter of section No. 1, in township 43, range 23, for the sum of thirty-one dollars. Also against the southeast quarter of the southwest quarter for the sum of twenty-three dollars. The three latter tracts assessed to W. S. Clinton for the years 1868, 1869 and 1871, being the amount of taxes, interest and costs due and unpaid on the aforesaid tracts of land respectively for the said years.

And whereas, on the 14th day of October, A. D., 1872, W. P. Paff, collector of the county aforesaid, by virtue of a special execution, issued out of the county court of Pettis county, State of Missouri, dated the 16th day of September, A. D., 1872, and to the collector of said county directed, did expose to public sale at the court house in the county aforesaid, after having first given at least four weeks' public notice of the intended application to the county court of said county of Pettis, at the August adjourned term thereof, for judgment against said lands, and of the time and place of sale thereof, by advertisement in the Weekly Sedalia Times, a newspaper printed and published in the city of Sedalia, Pettis county, Missouri, and in conformity with all the requirements of the statutes in such cases 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, James A. Spurlock, of Versailles, Missouri, having offered to pay the aforesaid sums of money due for taxes, interest and costs on said lands, which was the least quantity bid for, the whole of said tracts was stricken off and sold to him.

Now therefore, I, Adam Ittel, treasurer and ex-officio collector of Pettis county, State of Missouri, in consideration of the premises and the said sums of money paid to the collector of Pettis county, in hand for the taxes, interest and costs due and unpaid on said lands, by the said James A. Spurlock, at the time of the aforesaid sale, and by virtue of the statutes in such cases made and provided,...