Sullivan v. Donnell
| Decision Date | 06 December 1886 |
| Citation | 2 S.W. 264,90 Mo. 278 |
| Parties | Sullivan v. Donnell, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Turner A. Gill, Judge.
Affirmed.
W. C Stewart. L. C. Slavens and F. F. Rozzelle for appellant.
(1) It is the policy of the law, at the present day, to uphold tax titles. "The time has gone by," says Judge Cooley "when the proceedings of taxing officers are to be criticised with microscopic nicety, and the exact time and method of every step examined to detect a departure from the law, however insignificant or unintentional." Stockle v. Silsbee, 41 Mich. 615; Raby v Guinn, 76 Mo. 263; 1 Flippan (6 U. S. Cir.) 472; Cooley on Taxation, pp. 206-7. (2) It was certainly the intention of the legislature that a tax deed under this law should be construed like any other deed, and the presumption prevails that the officers in the collection of the city revenue did their duty. 9 West. Jurist, 17, 129. (3) The most that can be required is, that the deed shall contain the substance of every averment contained in the charter form. The omission of the word "publicly" did not affect the validity of the deed. Skinner v. Williams, 85 Mo. 492; Haynes v. Heller, 12 Kas. 381; McCauslin v. McGuire, 14 Kas. 234; Phillips v. Meade, 41 Iowa 470; Callahan v. Hurley, 93 U.S. 387.
R. H. Field for respondent.
(1) It is a tax deed to real estate containing all required recitals that vests the title to the property in the tax purchaser under the Kansas City charter. Until he receives such a deed he has no title to the property, however regular and valid the prior proceedings may be. Laws, 1875, pp. 236-7; Donahoe v. Veal, 19 Mo. 331; Abbott v. Doling, 49 Mo. 302. Evidence aliunde of a tax deed may be offered in opposition thereto, but an omission of a recital in a tax deed cannot be supplied by evidence aliunde of such instrument; hence it was no error for the court to exclude such evidence when offered by appellant. 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; Larkin v. Wilson, 28 Kas. 514, 515; Cartwright v. McFadden, 24 Kas. 662; Lessee v. McLaughlin, 8 Ohio 116; Proprietors v. Page, 6 N.H. 182; Cunningham v. Railroad, 61 Mo. 33; Hilger v. Quinney, 51 Wis. 62, 72; Large v. Fisher, 49 Mo. 307. (3) The deed is void on its face, as it entirely omits the word "publicly" before the word "held," thus failing to pursue the form prescribed as to an applicable recital, when the city bids off the property in the first instance, if the form or any part thereof is to be used in that case in making a deed to the assignee of the city's bid. Barelli v. Lyttle, 4 La. An. 557; Hopkins v. Scott, 86 Mo. 140; Merritt v. Portchester, 71 N.Y. 309; Culver v. Haydon, 1 Vt. 364. If a tax deed depart from the form, "its departure should not be such as to leave uncertain that which is made certain by that form." Haynes v. Heller, 12 Kas. 391. (4) There are no presumptions in favor of a tax deed defective on its face. Long v. Burnett, 13 Iowa 29; Williams v. Underhill, 58 Ill. 137; Hubbard v. Johnson, 9 Kas. 634; Morton v. Reeds, 6 Mo. 64; Yankee v. Thompson, 51 Mo. 238. (5) The omission in the tax deed cannot be excused without disregarding an express statutory requirement. The rule is, that some force and effect must be given to every word in a legislative act, if possible. Blackwell on Tax Title, p. 56; French v. Teschemaker, 24 Cal. 518. This rule was expressly adopted in Wisconsin, as a reason for requiring every recital in a form for a tax deed to be set out to make a valid conveyance. See Lain v. Cook, 15 Wis. 449; see also, Jacoway v. Gault, 20 Ark. 190; Merritt v. Portchester, 71 N.Y. 309; Culver v. Haydon, 1 Vt. 359. (6) If the collector should fail to have a public sale on the first Monday in November (the first day he had advertised to begin his sale), his power to sell on a subsequent day would be functus officio on account of such failure. Prindle v. Campbell, 9 Minn. 212; Wilkinson v. Huse, 10 Ohio 139.
This is an action of ejectment for lot 6, block "H," Ransom & Talley's addition to the City of Kansas. Defendant relies upon a tax deed made by the collector of that city under its charter, for taxes due for 1877. The deed is based upon a sale at which the city comptroller bid off the property for $ 2.82, the amount of the tax, certificate assigned to Cannon, and by him assigned to Crane, to whom the tax deed was made on the eighth of June, 1881. The tax deed, which was offered in evidence and excluded by the court, recites that the property was subject to taxation for 1877, and that the taxes remained unpaid, and then proceeds as follows: "And, whereas, the city collector of said City of Kansas did on the tenth day of November, 1877, by virtue of the authority in him vested by law, at the sale begun and held on the first Monday of November, 1877, the first day on which said real property was advertised for sale [which sale was continued from day to day up to and including the tenth day of November, 1877], expose to public sale, at the office of the city collector, in the City of Kansas, aforesaid, between the hours of ten o'clock in the forenoon and five o'clock in the afternoon, and in conformity," etc.
This deed is in the exact form prescribed by the charter, with the exception that the words included in brackets are not in the form, and with the further exception that the form reads, "at the sale begun and publicly held." The question is, whether the omission of the word "publicly" renders the tax deed void on its face. We may say at the outset that there can be no doubt but that the statutory form applies to those cases where the property is bid off by the city in the first instance, as well as to those cases where the property is purchased by individuals at the tax sale. In the former case the tax deed will vary from the form so as to state the facts truly. That the form does apply in both cases is clear from a consideration of sections 50 and 63, of article 6, of the charter (Acts of 1875, p. 233), followed by section 64, which applies to all tax deeds. Nothing said in Skinner v. Williams, 85 Mo. 489, ought to lead to a contrary conclusion. Section 64 provides that "tax deeds executed by the city collector shall be substantially in the following form," which is then given, and "when substantially thus executed and recorded, shall be prima facie evidence in all courts," of certain facts and conclusive evidence of certain other facts. There can be no doubt but that the deed, to be any evidence at all, must be in substantial compliance with the form. This is the criterion established by the legislature, and we have no power to vary it.
The question then comes to this, is this deed still substantially in compliance with the form? By the form it is made to appear affirmatively, first, that the sale when first begun was publicly held, i. e., a public sale; second, that subsequently, and when this property was...
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