Crane v. Dameron

98 Mo. 567

• Court: Supreme Court of Missouri
• Decided: October 15, 1889
• Status: Published

Opinion

Brace, J.

Action in ejectment for a tract of land in Shannon county. The land was entered by Cyrus K. Brown, in 1858, and on the tenth day of August, 1859, Brown, by warranty deed, conveyed the land to the plaintiff, whose deed was on the fifth day of March, 1860, filed for record in the office of the recorder of said county, and, on the eighth of March, 1860, the same was recorded among the land records of said county in Deed Book C, at pages 114 and 115, On the thirty-first of December, 1871, Deed Book C was destroyed by fire. The taxes on the land for the years 1871 to 1878, inclusive, was assessed to Brown. A suit for delinquent taxes for these years was instituted by the collector of said county against this tract of land, to which Brown was made the party defendant and on the sixth day of November, 1880, judgment was rendered for the taxes, and on the fifth day of May, 1881, the land was sold under this judgment. The defendant Dameron became the purchaser, received his tax deed therefor, and put the same on record in said county. The court, before whom the case was tried without a jury, found for the defendant, and plaintiff appeals.

The plaintiff was the owner of the lands during the years in which it was assessed to Brown. He was the owner when the suit was brought for the delinquent taxes for those years, when the judgment was rendered and the land sold to the defendant under the judgment, in which suit Brown was defendant, and to which plaintiff was not a party. The law under which this tax suit was brought required that it should be brought against “the owner of the property.” R. S. 1879, sec. 6857. The doctrine announced in Vance v. Corrigan, 78 Mo. 94, and recognized in the subsequent cases cited in Allen v. Ray, 96 Mo. 542, that a purchaser under a judgment in a back-tax suit to which the person appearing by the registry of deeds to be the owner was made a party defendant, in the absence of notice that such party was not the true owner, would be protected in his purchase against the holder of an unrecorded deed from such apparent owner, was, in the subsequent case of Payne v. Lott, 90 Mo. 676, held to extend to the person who appeared to be the owner by the plat-book of lands duly certified and on file in the county clerk’s office. The defendant is a purchaser under a judgment in a back-tax suit, to which the person appearing by the plat-book to be the owner of the land was made party defendant, and under the rule in that case he is to be protected. But against whom? Against the holder of an unrecorded deed from such apparent owner. But the plaintiff is the holder of a recorded deed from such apparent owner, and against him the rule affords the defendant no protection. True, the book in which the plaintiff’s deed was recorded was destroyed, but that was not his fault, and cannot be made his misfortune. It is not non-existent in contemplation of law, its contents can be proved by secondary evidence, and must be taken notice of by him who claims title by virtue of the record, against the true owner.

The judgment is reversed.

All concur, except. Rat, C. J., absent.