State ex rel. McElhinney v. Mantz

• Decision Date: 31 January 1876
• Citation: 62 Mo. 258
• Parties: STATE OF MISSOURI, ex rel. ALEX. McELHINNEY, Respondent, v. CHARLES A. MANTZ, Collector of State and County Revenue for St. Louis County, Appellant.
• Court: Missouri Supreme Court

62 Mo. 258

STATE OF MISSOURI, ex rel. ALEX. McELHINNEY, Respondent,

v.CHARLES A. MANTZ, Collector of State and County Revenue for St. Louis County, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Thomas C. Reynolds, for Appellant.

A. McElhinney, for Respondent, cited Nelson vs. Roundtree, 23 Wis., 371-377; Smith vs. Cleveland, 17 Wis., 556-557; Einstein vs. Gay, 45 Mo., 62; Black. Tax Tit., 3 ed., p. 366; Abbott vs. Lindenbower, 42 Mo., 162; Hume vs. Wainscott, 46 Mo., 145; Lagrone vs. Rains, 48 Mo., 536; Spurlock vs. Allen, 49 Mo., 178; Large vs. Fisher, 49 Mo., 307.

WAGNER, Judge, delivered the opinion of the court.

The relator was the owner of certain certificates of purchase of land at a tax sale in St. Louis county, for the taxes of 1867, the sale being made in 1868, and presented to the defendant, collector of the revenue, about March, 1874, a deed for him to execute for the land. The deed minutely described, in its recital, a history of the whole proceedings which transpired, or were supposed to have transpired, up to the time of, and including, the sale, the original assessment, in whose name the assessment was made, the newspaper advertisement, the action taken in the county court, and everything attending the sale.

Defendant refused to execute the deed, and the relator applied for and obtained an alternative writ of mandamus to compel him to do so. At the hearing of the case a peremptory writ was awarded, and defendant appealed.

The reasons, assigned by the defendant for his refusal to comply with the request and execute the deed, were: that he was a mere ministerial officer, and could not lawfully do anything which he was not by law authorized to do, and that the law did not authorize or permit him to execute the deed asked for; that his powers were defined by the revenue law of 1872, and he had always been ready and willing to give relator a deed in accordance with the provisions of that law, but relator refused to receive it; that if the case was regulated by the previous statute, as it stood at the time of the tax sale, the deed demanded by the relator contained matters and things and allegations, which, neither by said statute, nor by any other statute or law of this State, he was permitted or authorized to allege and set forth in any such deed in his official capacity.

The assessment and tax sale were both made while the law of 1864, as contained in the General Statutes of 1865, was in full force, and the relator's rights must be determined by that law; and the first question, therefore, is, whether the law, as it then existed, authorized and required the recitals in a tax deed which the relator inserted.

By section 110, p. 127, of the General Statutes, 1865, it is provided, that at any time after the expiration of two years from the time of the sale of any real estate for taxes, if the same shall remain unredeemed, the collector of the proper county, on request, and on the production of the certificate of purchase, shall execute and deliver to the purchaser, his heirs and assigns, a deed of conveyance for the real estate described in such certificate. The statute does not pretend to give any form of the deed, or say that it shall include or comprehend any particular recitals. The duty enjoined upon the collector is merely to make a conveyance for the real estate described.

It is said that where the form of the deed has not been prescribed by law, but the statute simply authorizes the execution of a deed of conveyance to the purchaser, any deed, which, according to the rules of the common law, would be sufficient to transfer the title of the former owner, and vest the estate in the purchaser, is regarded as an operative mode of conveyance, provided it recites the power under which it was made, and is accompanied by proof that the law was strictly complied with. (Blackw. Tax Tit., 366, 3 ed.; Einstein vs. Gay, 45 Mo., 62.)

As no particular form was designated by the statute, a common law conveyance, stating the power of the collector to sell, would have been sufficient. But the mere deed alone would not amount to a presumption that the deed was valid. To give validity and legal effect to the deed, it would be necessary to accompany it with extrinsic evidence showing that the requisite prior proceedings were taken to authorize the public sale, and that when they were taken they were carried on in a legal manner in every particular. At most, the deed is considered as evidence of the regularity of the sale only, and does not...