White v. Himmelberger-Harrison Lumber Co.

• Decision Date: 23 May 1911
• Citation: 240 Mo. 13,139 S.W. 553
• Parties: WHITE v. HIMMELBERGER-HARRISON LUMBER CO.
• Court: Missouri Supreme Court

139 S.W. 553

240 Mo. 13

WHITE v. HIMMELBERGER-HARRISON LUMBER CO.

Supreme Court of Missouri, Division No. 2.

May 23, 1911.

Rehearing Denied July 1, 1911.

1. TAXATION (§ 660) — TAX SALES — PURCHASERS' RIGHTS.

A judgment for taxes against the record owner of land on publication notice to him is good against the holder of an unrecorded deed.

2. VENDOR AND PURCHASER (§ 231) — RECORD — NOTICE.

Under Rev. St. 1909, § 2810, providing that a deed shall impart notice from the time of its filing for record, the deed itself imparts notice until it is actually recorded, and thereafter the record alone imparts notice, and hence, where a deed is given to O. H. P. Williams and recorded as to O. N. P. Williams, a subsequent

purchaser is not bound by the name as given in the deed itself.

3. TAXATION (§ 660) — SALE — DEEDS — RECORD.

One claiming under a deed to O. H. P. Williams, recorded as to O. N. P. Williams, is estopped to complain as against one claiming under a tax sale that publication notice in the tax suit should have run "O. H. P." instead of "O. N. P.," where the "H" was so written as to closely resemble "N"; under the doctrine that when loss must fall on one of two innocent persons through a third person's act, he who has enabled the third person to occasion the loss must sustain it.

4. TAXATION (§ 660) — PUBLICATION SERVICE — MISTAKE IN NAME — EFFECT.

Publication service against O. N. P. Williams binds O. H. P. Williams as record owner of land; the recorder of the deed having by mistake copied "N" instead of "H" on the record.

5. VENDOR AND PURCHASER (§ 231) — RECORD — NOTICE.

A receipt to O. H. P. Williams for the purchase price of land, recorded with the deed, which through mistake was recorded as running to O. N. P. Williams did not charge a subsequent purchaser with notice of the mistake.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by J. B. White against the Himmelberger-Harrison Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed.

Suit to quiet title. Williams Burns, the common source of title, on November 19, 1869, deeded the property in controversy to Oliver Hazard Perry Williams, giving the initials only of his first names, so that in the body of the deed the granting clause was to O. H. P. Williams. This deed was written upon a Pennsylvania form, the grantors living in Pittsburg, and upon this form, in the lower left-hand corner, opposite the certificate of the notary, is a blank which was filled in and signed by the grantor, Burns, reciting that he had received from the grantee, O. H. P. Williams, the consideration mentioned in the deed. The deed was filed by Williams with the recorder on May 7, 1870. In due time he received back the deed from the recorder, with the usual certificate stating that the deed had been duly recorded in Book M, giving the pages. This deed was copied by the recorder into the records, but in place of the initials "O. H. P." in the body of the deed, the recorder by mistake wrote the initials "O. N. P.," changing the middle initial from "H." to "N." The recorder also copied the receipt above mentioned, which was included in the form of the deed, and in copying that receipt he correctly copied the initials as "O. H. P." The property becoming delinquent for taxes, the collector of the county brought suit against the record owner, O. N. P. Williams, and service was had by publication by such initials. The suit resulted in a judgment against O. N. P. Williams, sale under the execution and purchase at such sale by defendant's grantor, who received the sheriff's deed dated March 8, 1881, and who had no notice of the mistake in the record. Subsequently, and before the institution of this suit, the heirs of O. H. P. Williams conveyed the property to plaintiff who filed this suit. Judgment was rendered for the plaintiff, the court rejecting the sheriff's deed and the subsequent deeds to the defendant on the ground that the judgment against O. N. P. Williams was void as against the heirs and grantees of the true owner, O. H. P. Williams. Defendant also pleaded title by adverse possession. The defendant's offer of proof under the defense of adverse possession was objected to as being insufficient, and the objection was sustained by the court. Urging the reversal of this judgment, the defendant asserts (1) that the sheriff's deed to its grantor conveyed a good title, because the judgment in the suit for taxes was against the record owner, O. N. P. Williams, and was binding on the true owner notwithstanding the mistake made by the recorder; (2) that the mistake in the middle initial was unimportant, and the judgment upon notice by publication against O. N. P. Williams was good as against O. H. P. Williams; (3) that the offer of proof to sustain title by adverse possession should have been admitted by the court. On the other hand, plaintiff contends that the mistake in the middle initial was fatal; also, that the record was not controlling as against the true owner because of the mistake made by the recorder in changing the letter "H" to "N." Plaintiff also contends that, as the record showed the initials to be "O. H. P." in the receipt attached to the deed and copied correctly into the record, the subsequent purchaser was put upon notice of the mistake in copying the initials in the body of the deed into the record. In addition to the above, it may be necessary to advert to other facts in the course of the opinion.

Ralph Wammack and Oliver & Oliver, for appellant. Louis F. Dinning and Keaton & Keaton, for respondent.

FERRISS, J. (after stating the facts as above).

I. (a) Numerous decisions of this court hold that a judgment in a suit for taxes against the record owner, with notice by publication to such record owner, is good against the holder of an unrecorded deed. The leading case is Vance v. Corrigan, 78 Mo. 94, in which this court said: "We are of opinion that the provision of the charter requiring the suit to be brought against the owner of the land does not mean that it must, in order to render the judgment valid, be brought against the real owner, although holding by an unrecorded conveyance, but it means that suit must be brought against the person appearing by the registry of deeds to be the owner, in the absence of notice to the contrary. The proceeding is really against the land, although a personal defendant is necessary to the validity of the proceeding, but no personal judgment can be rendered in the suit, and it is sufficient to proceed against the record title when the true owner is unknown. We are also of opinion that a purchaser at a regular execution sale under a judgment duly rendered in such suit will acquire the same rights which he would acquire by purchase from the execution defendant. If Corrigan had notice of the Vance title, the burden was on plaintiffs to show it." The foregoing decision is cited with approval in many subsequent cases, down to and including Land & Lumber Company v. Bippus, 200 Mo. 688, 98 S. W. 546, where Fox, J., speaking for the court says: "It is no longer an open question in this state that the officers in suits wherein it is sought to enforce the lien of the state for taxes, in the absence of notice to the contrary, may look to the record of deeds to see who the owner of the property is, and a purchaser under the judgment in such suits against the record owner, in the absence of notice that such person against whom the suit was brought was not the true owner, would be protected in his purchase against the holder of an unrecorded deed from such apparent record owner." The doctrine of these cases agrees with the common understanding of the people, and has become a fixed rule of property.

We are now called upon to decide whether this rule applies where the name of the grantee in the deed has been by mistake of the officer incorrectly recorded, so that the record owner appears to be other than the true owner. In such case is the purchaser at the tax sale protected in his title, the suit being against the record owner on notice by publication to such record owner? It is claimed by the defendant that if we would protect the integrity of our registry system we must answer this question in the affirmative. The defendant contends that the recorder acts as the agent of the person who files his deed for record. The plaintiff claims that when the holder of the deed files the instrument with the recorder and pays the filing fee, his duty is done, and he is under no obligation to see that the recorder performs his duty, and that a failure by the recorder to perform his duty will not endanger his title. With reference to the filing and recording of deeds and other instruments in writing, section 2810, R. S. 1909, provides as follows: "Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof, and all subsequent purchasers and mortgagees shall be deemed in law and equity to purchase with notice." This section does no more than say that notice is imparted by the record back to the date of filing; so that during the interval between the filing and the copying into the record the deed itself will impart notice. After the deed has been copied into the record subsequent purchasers must look to the record alone, the deed itself having been returned presumably to the owner. If the officer should return the deed to the owner, certifying that it has been recorded, but should fail to make any record thereof, it could hardly be claimed that a subsequent purchaser would be bound to take notice of the filing of the deed and of its contents. It is claimed in effect by plaintiff that the filing of the deed imparts to subsequent purchasers notice of its contents, even if it be incorrectly recorded, and that the subsequent purchaser is bound to take...