Wood v. Smith

• Decision Date: 22 February 1906
• Citation: 193 Mo. 484,91 S.W. 85
• Parties: WOOD v. SMITH.
• Court: Missouri Supreme Court

91 S.W. 85

193 Mo. 484

WOOD v. SMITH.

Supreme Court of Missouri. Division No. 1.

February 22, 1906.

1. DEEDS—TITLE CONVEYED—AFTER-ACQUIRED TITLE.

A warranty deed, which antedated a patent executed by the United States to the grantor, conveyed to the grantee the title subsequently acquired by the grantor through the patent.

2. JUDGMENTS—RES JUDICATA—PERSONS CONCLUDED.

An owner of land, who is not made a party to a suit to enforce taxes against that land, is not concluded by the judgment rendered therein.

3. TAXATION—SALES—TITLE OF PURCHASER— PAYMENT OF TAXES BY OWNER.

An illiterate owner of land, whose deed was not recorded, but who occupied the land as a homestead, showed the assessor his deed in order to enable the latter to describe the land for taxation. The assessor made a mistake in copying the description from the deed and assessed the land to the record owner. The true owner, nevertheless, paid the taxes on the land and received from the collector a receipt containing a proper description. A new collector was afterwards elected, and, discovering from the record of deeds that the land had been assessed to the record owner, brought suit against the record owner and sold the land accordingly, without examining the collector's books and ascertaining that the taxes had been paid by the true owner. Held, that the purchaser at the tax sale acquired no title as against the true owner of the land.

4. SAME.

As a general rule the collector, in instituting a suit for taxes, is only obliged to look to the record of deeds to see who the owner of property is, and a sale under a judgment for taxes against the apparent owner conveys a good title to the purchaser at the tax sale as against the true owner, whose deed is not recorded at the date of the sale; but the rule is without application where no patent to the land has been issued, so that there is no record title thereto, and no apparent owner other than the true owner in possession of the land.

Appeal from Circuit Court, Taney County; Asbery Burkhead, Judge.

Action by S. G. Wood against Thomas J. Smith. From a judgment for defendant, plaintiff appeals. Affirmed.

Groom & McConkey, for appellant. Price & Ford, for respondent.

MARSHALL, J.

This is an action in ejectment for the recovery of the W. ½ of lots 1 and 2 of the N. E. ¼ and the S. E. ¼ of the N. W. ¼ and the N. E. ¼ of the S. W. ¼ of section 5, township 22, range 20, Taney county. The petition is in the usual form, and the ouster is laid as of May 2, 1902. The answer is a general denial. A jury was waived, and the case was tried by the court. No instructions were asked or given. The court made a written finding of fact, apparently on its own motion, for no request therefor is contained in the record. There was a judgment for the defendant, and the plaintiff appealed.

The case made is this: The plaintiff offered in evidence a patent from the United States to William J. Middleton, dated June 11, 1895, conveying the land in question. The plaintiff then offered in evidence a sheriff's deed, under a judgment for taxes for the year 1896, conveying the interest of Middleton, the patentee, to the plaintiff Wood; said deed being dated April 30, 1902. The plaintiff then introduced evidence tending to show that the defendant was in possession of the land, and showing the value thereof, and then rested. The defendant read in evidence a warranty deed from said Middleton to the defendant, dated October 3, 1894, and filed for record on the 30th of May, 1902. The defendant then read in evidence the entry on the taxbook for the year 1896, which was as follows: "Current No. 1,402, William J. Middleton; number of acres 149.30; west half lots 1 and 2, northeast quarter southwest fractional quarter, section 5, township 22, range 20; valuation $205.00; state tax, .51; county taxes, $2.36; total $2.87." The defendant also read in evidence an entry from the taxbook of Taney county for the year 1896, as follows: "Current No. 1,832, Smith, T. J.; number of acres 149.31; west half lots 1 and 2 northwest quarter, and north half lots 1 and 2 northeast quarter, section 5, township 22, range 20; valuation $324.00; state taxes, .81; county tax, $3.73; total $4.54; when paid, January 30th, 1897; T. J. Smith"—which was duly signed by the collector of the revenue of Taney county. The defendant also offered in evidence a tax receipt, dated January 30, 1897, showing the payment by T. J. Smith of $5.99, on 149.31 acres, for the year 1896, and being the W. ½ of lots 1 and 2 of the N. W. ¼ and the E. ½ of lot 2 and the N. W. fractional ¼ and the N. E. ¼ of S. W. ¼ of section 5, township 22, range 20. The defendant then testified that, when the assessor came to assess his land, he handed him his deed, and the assessor took the numbers of the land and assessed it; that, when he went to pay the taxes, the collector discovered that the description in the tax receipt did not correspond with the description of the land set out in the deed, and thereupon the collector corrected the tax receipt, so as to make the descriptions correspond, and then the defendant paid the taxes. The record does not contain an abstract of the files in the tax suit; but from the whole testimony adduced it is apparent that the suit for taxes was brought against Middleton, as the apparent owner, although there is nothing in the abstract of the record to show whether or not at that time the patent from the government to Middleton had been recorded, or that it has ever been recorded. The abstract of the record does not show when the defendant entered upon the possession of the property; but it was admitted in open court by defendant that he was in possession at the time the tax suit was brought, and is still in possession, and the finding of fact by the court showed that, when the defendant purchased the land from Middleton, he moved on it, and has lived on it and cultivated it ever since. The plaintiff objected to the deed from Middleton to the defendant, on the ground that it was not filed for record until after the plaintiff had purchased the land at the tax sale. The plaintiff also objected to the assessments being offered in evidence, on the ground that such matters would have been a proper defense in the tax suit, but could not be shown in this suit. The court found the fact to be that the defendant was an illiterate man; that, when the assessor went to his place to assess the tax for 1896, the defendant delivered his deed to the assessor, and the assessor undertook to take the description of the land from the deed, but that in so doing he made a mistake and described the N. ½ of lots 1 and 2 of the N. E. ¼ and the W. ½ of lots 1 and 2 of the N. W. ¼ of section 5, instead of describing the E. ½ of lots 1 and 2 of the N. E. ¼ and the E. ½ of lot 1 and the S. E. ¼ of the N. W. ¼ and the N. E. ¼ of the S. W. ¼ of section 5; and that on the 30th...