White v. Himmelberger-Harrison Lumber Co.
| Citation | 139 S.W. 553,240 Mo. 13 |
| Parties | J. B. WHITE v. HIMMELBERGER-HARRISON LUMBER COMPANY, Appellant |
| Decision Date | 06 February 1912 |
| Court | United States State Supreme Court of Missouri |
Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.
Reversed.
Oliver & Oliver, Ralph Wammack, C. D. Corum and Martin L. Clardy for appellant.
(1) The tax collector in instituting suits for the enforcement of the lien for delinquent taxes, in the absence of notice to the contrary, may look to and rely upon the record of deeds to see who the owner of the property is, and the purchaser under the judgment in such suits will be protected in his purchase against the holder of an unrecorded deed. Vance v Corrigan, 78 Mo. 97; Hunt v. Sack, 79 Mo. 663; Payne v. Lott, 90 Mo. 680; Evans v Robertson, 92 Mo. 200; Allen v. Ray, 96 Mo 546; Nolan v. Taylor, 131 Mo. 227; Weir v. Lumber Co., 186 Mo. 395; Schnitger v. Rankin, 192 Mo. 42; Evarts v. Lumber Co., 193 Mo. 444; Wood v. Smith, 193 Mo. 484; Stuart v. Ramsey, 196 Mo. 414; McDermott v. Gray, 198 Mo. 286; Harrison v. Bowers, 200 Mo. 232; Land & Lumber Co. v. Bippus, 200 Mo. 688. (2) Proceedings to enforce tax liens, while they are not strictly in rem, are to be proceeded with as ordinary actions against real estate. The court is only authorized to render special judgment against the land to enforce the lien of the State, and even though personal service be had on the owner there can be no personal judgment. The land stands for the taxes and the judgment is against the land, not against the owner. The ownership of the land is but a mere incident of the prosecution of the action. Gitchell v. Kreider, 84 Mo. 472; Milner v. Shipley, 94 Mo. 106; Stewart v. Allison, 150 Mo. 343. (3) The owner of land is presumed to know under what name he holds title of record. The same record that notifies the collector who the owner of the land is, for the purpose of enforcing the State's lien for taxes, likewise notifies the owner how he holds title of record. Bishop v. Schneider, 46 Mo. 477; Terrell v. Andrew Co., 44 Mo. 309; Hilton v. Smith, 134 Mo. 509; Schnitger v. Rankin, 192 Mo. 42. (4) This judgment places the burden and duty on the public to make inquiry dehors the record, and of acquiring actual knowledge from private sources of information, that each man's deed has been correctly recorded. This duty under the law rests upon the recorder and the grantee in the deed or instrument recorded. If the former fails to do his duty he is liable on his bond, to the grantee in the deed, if the latter fails to do his duty, he ought to be made to submit to any loss, inconvenience or burden that may flow, from his neglect. No purchaser can safely rely on judicial sales and the public records of the State if this judgment of the trial court stands. R. S. 1899, secs. 923, 924, 9062, 9068, 9057, 9075; Ritchie v. Griffith, 12 L.R.A. 384. (5) Williams took this deed from Burns by initial letters. The deed does not disclose what the initial letters represent. The commonwealth or State could only know Williams's name by an examination of the land records when it sought to compel him to pay the taxes due the State. R. S. 1899, sec. 923, 924. When, therefore, he reads a published notice addressed to him by the same initials he has advised the public to be his initials, describing the land and informing him that the taxes thereon are delinquent, his identity is sufficiently indicated to require him to plead to the action, or be estopped to question the validity of a judgment thereon, when raised collaterally. Elting v. Gould, 96 Mo. 535; Mosely v. Riley, 126 Mo. 129; Nolan v. Taylor, 131 Mo. 227; Hilton v. Smith, 134 Mo. 508; Turner v. Gregory, 151 Mo. 105; Vincent v. Means, 184 Mo. 344; Schnitger v. Rankin, 192 Mo. 43. (6) The middle letter is no part of the name. Its absence or misrecital does not affect the question of identity one way or the other. Orme v. Shephard, 7 Mo. 606; State v. Martin, 10 Mo. 391; Phillips v. Evans, 64 Mo. 23; Beckner v. McLain, 107 Mo. 288; Lucas v. Land Co., 186 Mo. 453; Howard v. Brown, 197 Mo. 46.
Louis F. Dinning and Keaton & Keaton for respondent.
(1) Appellant's first point has no application whatever to the case. All of his citations are applicable only to purchasers and owners of land who have put their deeds to record and afterwards sold them to another purchaser who failed to put his deed to record; that is not this case. Troyer v. Wood, 96 Mo. 478; Chamberlain v. Blodgett, 96 Mo. 482; Williams v. Butterfield, 214 Mo. 414. While it is true no personal judgment can be rendered in a tax suit and that the suit is authorized against the record owner, yet the purchaser only gets the title of the party made defendant, and if he has no title, the purchaser gets none. Moore v. Woodruff, 146 Mo. 601; Land & Lumber Co. v. Tie Co., 87 Mo. 176; Harrison v. Bowers, 200 Mo. 219. It is not true that the owner of land is presumed to know of errors or mistakes or misprision of the recorder in recording his deeds, when the certificate of record shows it has been duly and correctly recorded. Sec. 924, R. S. 1899. When the grantee of a deed properly acknowledged files the same with the recorder for record and pays the fees therefor he has complied with the law and done all required of him to be done to protect a subsequent purchaser. 20 Am. & Eng. Ency. Law (2 Ed.), sec. 162; Webb on Record Title, sec. 16; Polk v. Cosgure, 4 Biss. (U.S.) 445; Fonche v. Swaim, 80 Ala. 153; Case v. Hargadine, 43 Ark. 144; Meherin v. Oaks, 67 Cal. 57; Lewis v. Hinman, 56 Conn. 55; Kizer v. Heuston, 138 Ill. 252; Chandler v. Scott, 127 Ind. 226; Lee v. Bermingham, 30 Kan. 312; Gillispie v. Rodgers, 146 Mass. 610; People v. Bristol, 35 Mich. 28; Mangold v. Barlow, 61 Miss. 593; Clader v. Thomas, 89 Pa. St. 343; Williams v. Butterfield, 214 Mo. 424. (2) For the sake of argument alone, we may admit that it was the duty of O. H. P. Williams, the grantee, to see that the recorder did his full duty, and recorded the deed correctly. That would avail this appellant nothing, for it is not an innocent purchaser. There is no pretense of claim on the part of the appellant or any one else in this record, that the recorder made but one mistake in recording this deed, and that was in the grantee's name in the granting clause thereof. The letter "H" was written an "N." This deed written on a Pennsylvania form, which has a receipt on the face of the deed and is a part thereof, not merely a receipt in the body of the deed, which is merely formal, and it says: "Received, the day and date of the above indenture, of the above named O. H. P. Williams the sum of fifty-seven hundred and sixty dollars, lawful money of the United States being the consideration money above mentioned, in full." In this receipt the name O. H. P. Williams is recorded correctly by the recorder. This receipt is written upon the face of said deed and above the acknowledgment thereof by the notary public. Anyone examining the title to the land in question and found the record to this deed with the above receipt written thereon would be furnished notice to put any reasonable persons on inquiry as to the correct status of this deed. For this receipt furnishes information to the inquirer that the grantee in said deed was O. H. P. Williams, and that he paid the consideration therefor in cash and the payment thereof was witnessed by the notary public, who took the acknowledgment to said deed, as part of one and the same instrument and contract, and shows beyond a doubt that O. H. P. Williams bought the land and paid for it, and is the person named in the granting clause of said deed. Williams v. Butterfield, 214 Mo. 412. (3) It is true Williams took his deed by the initials of his name, but when he is sued by his initals of his Christian name, he must be sued by his correct initials in the deed by which he took the land, not by what the recorder placed on the record, if sued by publication. Turner v. Gregory, 151 Mo. 105; Spore v. Land Co., 186 Mo. 659; Howard v. Brown, 197 Mo. 46; Vincent v. Means, 184 Mo. 344; Burkham v. Manewal, 195 Mo. 506; Parker v. Parker, 146 Mass. 321; State v. Higgins, 60 Minn. 1; Massillon Engine Co. v. Holdridge, 68 Minn. 394; Price v. State, 19 Ohio 424.
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...
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