State ex rel. and to Use of Crites v. Short

• Decision Date: 04 October 1943
• Docket Number: 38473
• Parties: State of Missouri, at the Relation and to the use of Christ C. Crites, Appellant, v. W. E. Short, Collector of the Revenue of Wayne County, Missouri
• Court: Missouri Supreme Court

174 S.W.2d 821

351 Mo. 1013

State of Missouri, at the Relation and to the use of Christ C. Crites, Appellant, v. W. E. Short, Collector of the Revenue of Wayne County, Missouri

No. 38473

Supreme Court of Missouri

October 4, 1943

Rehearing Denied November 1, 1943.

Appeal from Wayne Circuit Court; Hon. Everett E. Eversole Judge.

Affirmed.

J Grant Frye and Gerald B. Rowan for appellant.

(1) The appellant showed every fact necessary to entitle him to a collector's deed to the land in controversy. The respondent failed to show any facts which would warrant his refusal to deliver such a deed to appellant. The deed of October 25, 1940, which purported to be from Hal Bennett, as attorney in fact for The Johns Hopkins University, to C. O. Barks, and the deed of November 6, 1940, from C. O. Barks to Boss H. P. Bennett would not be sufficient to convey an interest to Boss H. P. Bennett which would permit him to redeem unless it was shown that Hal Bennett was in fact empowered to act as attorney in fact for The Johns Hopkins University and the purported power of attorney from The Johns Hopkins University which was admitted in evidence for the purpose of proving this fact should not have been admitted for the reason that it was not properly identified as having been executed by anyone who had authority to execute it on behalf of The Johns Hopkins University, and was not acknowledged. Secs. 3433, 3435, R. S. 1939; Scotland County Natl. Bank v. Hohn, 125 S.W. 539, 146 Mo.App. 699; Miller v. Corpman, 257 S.W. 428, 301 Mo. 589. (2) The purported power of attorney admitted in evidence was not admissible to prove the authority of Hal Bennett to execute the deed of October 25, 1940 as the agent for The Johns Hopkins University, because the purported power of attorney was not recorded until December 6, 1940, or at a date later than the date of the deed. Sec. 3433, R. S. 1939. (3) The competent and admissible evidence offered by respondent fails to show that Hal Bennett was authorized by The Johns Hopkins University, the admitted owner of the fee, to convey this land; and hence, Boss H. P. Bennett, who claims, under a purported conveyance by Hal Bennett for The Johns Hopkins University, was not entitled on November 7, 1940 to redeem the tax certificates purchased by appellant as he attempted to do. Authorities cited under (1). (4) The purported power of attorney, being incompetent and inadmissible in evidence, respondent failed to show any reason why he should not have executed a collector's deed to appellant, and the alternative writ of mandamus ought to have been made permanent. Sec. 11149, R. S. 1939.

Roy W. McGhee and Robert C. Hyde for respondent.

(1) Appellant was not entitled to a deed if there had been a redemption as contemplated by law. Sec. 11149, R. S. 1939. (2) There had been a redemption as contemplated by law when "Boss" H. P. Bennett, claiming an interest in the land under a quitclaim deed, describing the land and properly acknowledged, secured certificates of redemption upon the payment of a proper sum of money. Sec. 11145, R. S. 1939. (3) The deed to "Boss" H. P. Bennett which was properly acknowledged, was admissible in evidence. Sec. 3435, R. S. 1939. (4) "Boss" H. P. Bennett made a prima facie case of title in himself showing a quitclaim deed describing the land and properly acknowledged without further proof of its execution and delivery. Keener v. Williams, 271 S.W. 489. (5) A power of attorney shall be acknowledged and proved and certified and recorded as other instruments in writing, conveying or affecting real estate, are required to be acknowledged or proved and certified and recorded. Sec. 3433, R. S. 1939. (6) A deed shall be acknowledged and proved and certified and recorded. Sec. 3426, R. S. 1939. (7) A deed is valid between the parties although not acknowledged or recorded and the purpose of acknowledgment is to protect the creditor and purchaser. Sec. 3428, R. S. 1939; Elsea v. Smith, 202 S.W. 1071. (8) The appellant, as a certificate holder under the Jones-Munger Law, received no title to the land in question, he was an owner of an inchoate title which could become complete only if there was no redemption in time. State ex rel. St. Louis v. Baumann, 153 S.W.2d 31; St. Louis v. Koch, 156 S.W.2d 1; State ex rel. United States Mtg. & Trust Co. v. Godfrey, 56 N.E. 482. (9) "Owner" means the person having either legal or equitable title or an interest in the property. 42 Am. Jur., p. 214, sec. 37; 2 A. L. R. 779; 95 A. L. R. 1086. (10) "Interest" in land is not synonomous with title and a purchaser holding under a deed, defectively executed, has an absolute and insurable interest in the property although he has no legal title. 42 Am. Jur., p. 214, sec. 36; Hough v. City Fire Ins. Co., 29 Conn. 10; 50 C. J., p. 783, sec. 59. (11) "Boss" H. P. Bennett was entitled to redeem the land be cause he was the owner and a person having an interest in the land even though he had no legal title. Spillman Land & Securities Co. v. Standard Inv. Co., 238 S.W. 418; Darrington v. Rose, 90 So. 632; Henze v. Mitchell, 140 N.W. 149; 2 A. L. R. 792; 95 A. L. R. 1094; 26 R. C. L., sec. 387, p. 430; Wyatt v. Beard, 15 S.W.2d 990; Hayes v. Fridge, 101 So. 270.

OPINION

Tipton, J.

This is a mandamus action to compel the respondent, the collector of revenue of Wayne County, Missouri, to execute a deed to certain lands in Wayne County under the provisions of the Jones-Munger Act of 1933, sections 11117, et seq., R. S. Mo. 1939. The trial court denied the writ for the reason that it had been redeemed by one Boss H. P. Bennett.

The evidence shows that on November 7, 1939, the appellant bought the tax certificates for the delinquent taxes due on the land in question for the years 1934, 1935, 1936, 1937, and 1938. At the time the tax certificates were bought by the appellant, the title to the land was in Johns Hopkins University and it was conceded at the trial that no redemption was made by it. However, a quitclaim deed, dated October 25, 1940, was introduced in evidence executed by Hal Bennett, as attorney in fact for Johns Hopkins University, conveying the land to C. O. Barks, who, in turn, conveyed the land on November 6, 1940, to Boss H. P. Bennett. He paid the taxes, interest, and penalties due on November 7, 1941, and respondent issued to him redemption certificates. A power of attorney was executed by Johns Hopkins University dated June 6, 1940, giving authority to Hal Bennett to execute a deed in its behalf. This power of attorney was filed in the recorder of deeds' office on December 6, 1940, but it was not acknowledged. It is conceded that the appellant had complied with all statutory requirements entitling him to a collector's deed, and that Boss H. P. Bennett had also complied with all statutory requirements entitling him to redeem the land if he had a right to redeem.

Or to put it another way, does the fact that there was no acknowledgment of the power of attorney deprive Boss H. P. Bennett from the right of redemption?

Section 11145, R. S. Mo. 1939, states who may redeem in the following language: "The owner or occupant of any land or lot sold for taxes, or any other persons having an interest therein, may redeem the same at any time during the two years next ensuing, in the following manner: . . ." (Italics ours.)

The respondent contends that Boss H. P. Bennett was...