Taff v. Tallman

• Decision Date: 04 March 1919
• Docket Number: No. 19877.,19877.
• Citation: 277 Mo. 157,209 S.W. 868
• Parties: TAFF et al. v. TALLMAN.
• Court: Missouri Supreme Court

209 S.W. 868

277 Mo. 157

TAFF et al. v. TALLMAN.

No. 19877.

Supreme Court of Missouri, Division No. 2.

March 4, 1919.

Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

Action by William R. Taff and others against Roscoe Tallman. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with directions.

Harry Clymer, of Steelville, for appellant. A. H. Harrison, of Steelville, for respondents.

FARIS, J.

This is an action to determine interest in a certain 40-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 3d 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 bourse 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, Rev. St. 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, Rev. St. 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; section 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 facts 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 the property." Section 9303, R. S. 1899.

So plaintiffs contend that by adding, in 1909, to the above clause the provision that, if the actual owner were not known, then the action lay against him who by the county records appeared to be the owner, the Legislature intended that the title of the actual owner should be divested by an execution sale under a judgment against one who, though shown by the records to be such, was not in fact the actual owner of the lands when the action was begun. The ruled cases disclose, however, that this court had uniformly held that the statute, even before it was ever amended in 1909, required that the suit for taxes should be brought against the actual owner, if known, and, if not known, then against him who by the records of land titles in the county appeared to be the owner of the land. Hilton v. Smith, 134 Mo. loc. cit. 509, 33 S. W. 464, 35 S. W. 1137; Schnitger v. Rankin, 192 Mo. 35, 91 S. W. 122; Land & Lumber Co. v. Bippus, 200 Mo. 688, 98 S. W. 546; Allen v. McCabe, 93 Mo. 144, 6 S. W. 62; Vance v. Corrigan, 78 Mo. 94; State ex rel. v. Sack, 79 Mo. loc. cit. 663; Cowell v. Gray, 85 Mo. loc. cit. 172; Keaton v. Jorndt, 259 Mo. loc. cit. 195, 168 S. W. 734; Rothenberger v. Garrett, 224 Mo. 191, 123 S. W. 574. In short, the amendment of 1909 was merely declaratory of the existing law upon this point. Therefore this amendment performed no office toward changing the law. It only changed "lex non scripta" into "lex scripta."

It follows, therefore, that if, before the amendment of 1909, the actual owner of the land, who was not sued for taxes, did not lose his title by a sale, upon a judgment against the record owner, made after the recording of the conveyance to such actual owner (Sugg v. Duncan, supra; Wilcox v. Phillips, 260 Mo. 664, 169 S. W. 55; Harrison Machine Works v. Bowers, 200 Mo. 219, 98 S. W. 770), then such actual owner—no change having been made in the meaning of the law by the amendment—ought not under similar circumstances to lose his land now. Expressions and disconnected dicta are to be found in the ruled cases which on first blush seem to point to a different view. See Schnitger v. Rankin, 192 Mo. 35, 91 S. W. 122; Vance v. Corrigan, 78 Mo. 94; Weir v. Lumber Co., 186 Mo. loc. cit. 385, 85 S. W. 341; Hilton v. Smith, 134 Mo. loc. cit. 508, 33 S. W. 464, 35 S. W. 1137; Wood v. Smith, 193 Mo. 484, 91 S. W. 85; Payne v. Lott, 90 Mo. 676, 3 S. W. 402; Evans v. Robberson, ...