Taff v. Tallman
| Decision Date | 04 March 1919 |
| Citation | 209 S.W. 868,277 Mo. 157 |
| Parties | WILLIAM R. TAFF et al. v. ROSCOE TALLMAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Crawford Circuit Court. -- Hon. L. B. Woodside, Judge.
Reversed and remanded (with directions).
Harry Clymer for appellant.
(1) The warranty deed from Wilson to defendant was executed on June 20, 1910, and filed and recorded on September 10, 1910. The tax suit against Wilson was filed on September 3, 1910, and the judgment in that suit was rendered on November 11, 1910 two months after the recording of the deed to Tallman. The sale, under which plaintiffs claim title, was on February 24 1911, more than eight months after Wilson had parted with the title and more than five months after the deed from Wilson to Tallman had been filed and recorded. Hence no title passed by such sale and plaintiffs acquired no rights thereunder. Harrison Machine Works v. Bowers, 200 Mo. 219; Sugg v. Duncan, 238 Mo. 422; Wilcox v Phillips, 260 Mo. 664; Rehm v. Alber, 199 S.W. 173. Where a purchaser at a sale under a tax judgment has notice of the execution of a deed by the judgment debtor, his title acquired at such tax sale is invalid as against the grantee in that deed, even though the deed may not be recorded. Stuart v. Ramsey, 196 Mo. 404. After the recording of the deed, which was prior to the sale under the judgment for taxes, and prior to the rendition of the judgment for taxes, the purchasers at such subsequent sale must be held to have had notice of the deed, and would acquire no title as against the grantee in that deed. Sec. 2810, R. S. 1909; Harrison Machine Works v. Bowers, 200 Mo. 232; Sugg v. Duncan, 238 Mo. 422. In sales under judgments the sheriff sells only the right and title of the judgment debtor; and in this case the judgment debtor, having parted with his title by deed executed prior to the filing of the suit, and recorded prior to the rendition of the judgment and sale thereunder, the purchasers took nothing by the sheriff's deed to them. Davis v. Owenby, 14 Mo. 170; Hannah v. Davis, 112 Mo. 607; Sugg v. Duncan, 238 Mo. 426. (2) It is the settled law in this State that a deed supported by a valid consideration, not recorded at the time of judgment, but placed on record before the sale of the land under the judgment, takes precedence over the title acquired by the purchaser at the subsequent sale under the judgment. Dixon v. Dixon, 181 S.W. 86; Hannah v. Davis, 112 Mo. 607; Sugg v. Duncan, 238 Mo. 422. (3) Sec. 11498, R. S. 1909, affords the plaintiffs no relief, because that section as amended in 1909, and as it now exists, means just what the courts of this State have long construed it to mean prior to its amendment. Keaton v. Jorndt, 259 Mo. 195; Powell v. Greenstreet, 95 Mo. 1.
A. H. Harrison for respondents.
(1) The unpaid taxes constituted a lien on the land, and this lien was prior and paramount to all other liens. It was created and disclosed by public records, and the appellant took his deed with notice of it, and he was bound to go further and see whether the delinquent taxes had been satisfied; had he done this at the date he filed his deed it would have disclosed the tax suit pending against the land to enforce the payment of the taxes. He therefore, took with notice of the suit that resulted in the sale and is bound thereby. Fleckenstein v. Baxter, 114 Mo. 496. (2) In absence of other information, the collector was entitled to fasten and foreclose the lien of the State upon the land by suing him who appeared from the records to be the true owner which was Wilson, who was the defendant in the tax suit. Keaton v. Jorndt, 259 Mo. 195. (3) The law in force at the time the tax suit was filed against Wilson, the defendant, required the collector to prosecute his action "against the owner of the property if known, and if not known, then against the last owner of record as shown by the city or county records at the time the suit was brought." Sec. 11498, R. S. 1909. (4) If one of two stands to lose, the law puts the loss on the one whose neglect caused it; in this case the respondents did all that they were required to do which was to ascertain that at the time the suit was filed, it was brought against the last owner of record as shown by the county records. When that tax suit was prosecuted to a final judgment and sale and the respondents purchased the land at the sale, they became the owners and appellant lost all his title in the land. "One holding an unrecorded instrument affecting the title to the land should not be allowed to defeat the objects of the law and obstruct the collection of the revenue by filing it for record before judgment or sale." Hilton v. Smith, 134 Mo. 508; Schnitger v. Rankin, 192 Mo. 35; Land & Lumber Co. v. Bippus, 200 Mo. 697; Wengler v. McComb, 188 S.W. 76; Allen v. Ray, 96 Mo. 546; Cowell v. Gray, 85 Mo. 169; State ex rel. Hunt v. Sack, 79 Mo. 661.
This is an action to determine interest in a certain forty-acre tract of land situate in Crawford County. Upon the trial of the case before the court, plaintiffs had judgment and defendant has, by the usual procedure, appealed.
The facts of the case, in so far as these facts are necessary to an understanding of the legal question which we find it necessary to discuss, are few and simple and run substantially thus: One Otis S. Wilson, who is conceded by both parties to be the common source of title, was on and prior to the 20th day of June, 1910, the owner of the land in controversy. On the date last above mentioned, said Wilson, in good faith (so far as the record before us discloses), sold and conveyed to the defendant herein all of his right, title and interest in the land in dispute.
Thereafter, and on the 3rd day of September, 1910, plaintiff, William R. Taff, as Collector of the Revenue of Crawford County, filed a suit against said Otis S. Wilson to foreclose the lien of the State of Missouri for delinquent taxes on the land in controversy. Personal service was had in that action on said Wilson, who, as forecast, was the apparent owner of said land so far as the records in the recorder's office disclosed the ownership thereof. This service was had on the 8th day of September, 1910. Two days after such personal service in the tax suit was had on Wilson, and seven days after the tax suit was filed, that is to say, on the 10th day of September, 1910, defendant filed his deed of conveyance for record and it was duly recorded. Thereafter, and on the 10th day of November, 1910, judgment by default was had solely against Otis S. Wilson. In due course, an execution was issued and the land was sold under said judgment and purchased jointly by plaintiff William R. Taff, who, as stated above, was as Collector of the Revenue of Crawford County, the plaintiff in the tax suit, A. H. Harrison and Levi Hopkins, all three of whom are plaintiffs in this case. Plaintiff Harrison was at the time of his purchase of the land at the tax sale the tax attorney for Crawford County, and said Hopkins was the publisher of the newspaper in which was published the notice of the sheriff's sale thereof.
In order to determine interest plaintiffs brought the suit at bar and in due course a trial was had before the court. No instructions seem to have been asked, or given by the court for either side. The only matter of evidence which it is necessary to state, and this fact, conclusively shown at the trial, was not disputed, is that neither the plaintiff Harrison nor the plaintiff Hopkins actually knew that defendant was the real owner of the land in dispute at the time they purchased the land at the sheriff's sale for taxes; though at the time of such sale, as stated above, defendant's deed of conveyance to said land was actually on record, affording constructive notice of defendant's sole ownership. But both Harrison and Hopkins testified that they did not examine the records of deeds after the tax suit was filed. Plaintiff Taff did not testify in the case at all. These facts will, we think, be sufficient to make clear the one decisive point which we are required to discuss.
I. There is but one controlling question before us. That single question is: Does the title to real estate pass as against the actual owner thereof, who records his deed thereto after a tax suit is begun, but before judgment therein, by a sale for taxes on a judgment in such suit solely against the record owner of the land, who in good faith had sold and conveyed all his title therein before the tax suit was begun?
As we gather the position of plaintiffs, they seem to concede that under the decided cases in this State which were bottomed on the law as it existed before the amendment of Section 11498, Revised Statutes 1909, in 1909 (Laws 1909, p. 722), the title would not have passed, and they could not have recovered. [Sugg v. Duncan, 238 Mo. 422, 142 S.W 321; Harrison Machine Works v. Bowers, 200 Mo. 219, 98 S.W. 770; Stuart v. Ramsey, 196 Mo. 404, 95 S.W. 382.] But plaintiffs urge that the changes made in Section 9303, Revised Statutes 1899, by interpolating therein by the amendment supra the words "if known, and if not known, then against the last owner of record, as shown by the county, or city records at the time the suit was brought" (Laws 1909, p. 722; Sec. 11498, R. S. 1909), have had the effect to change the rule announced in Sugg v. Duncan, supra, and other cases. Bare reference to the statute in force when the tax suit was begun and the fact arose upon which the case of Sugg v. Duncan was ruled, discloses that it then read: "All actions commenced under the provisions of this chapter shall be prosecuted in the name of the State of Missouri, at the relation and to the use of the collector, and against the owner of...
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