Kries v. Holladay-Klotz Land & Lumber Co.

98 S.W. 1086, 121 Mo. App. 184, 1906 Mo. App. LEXIS 463

Opinion

GOODE, J.

(after stating the facts.) 1. — Counsel for defendant say there is no evidence for the jury tending to show actual possession of the land in plaintiff; a point we find it unnecessary to decide. Regarding the abstract of title, their position is that it was competent evidence in connection with McGhee’s testimony in respect of all conveyances shown by it, except the tax deed purporting to convey the land for taxes to Samuel Rousin, dated April 6,1882. That deed appears to have been made while the title to the land was vested in Samuel Ford. Without the tax deed a link is missing in plaintiff’s chain of title, a fact which counsel insist defeats her constructive possession of the land as holder of the title; and, insist further that as she was not in actual possession, her action for the alleged trespass must fail. No point is made against the competency of the memorandum or abstract, on the ground that it could be used only as a means of refreshing the memory of the witness and not as secondary evidence of the record of the tax deed. Its admission as evidence to show the title of Ford had been transmitted by a tax sale is complained of because there is no proof, by recitals in the deed, or evidence aliunde, that such proceedings had occurred anterior to the sale for taxes, as were requisite in order to confer on the sheriff the power to sell. The statutory enactments in this state regarding sales of lands for taxes, have been altered from time to time, and it does not appear under what statutory authority the sale in the present instance occurred. If under the statute enacted in 1877, no form of deed is prescribed. [R. S. 1899, sec. 9305.] But in the absence of a statutory requirement regarding recitals in a tax deed, the general doctrine is that the deed must contain recitals to show the sheriff had authority to sell. [Black, Tax Titles (2 Ed.), sec. 396; Einstein v. Gay, 45 Mo. 62; State v. Mantz, 62 Mo. 258; Guffy v. O’Reilly, 88 Mo. 418.] It was held in the case last cited that a deed made pursuant to the' above statute must contain substantially the recitals which the preceding section of the statutes (9304) requires in the judgment. We suppose, too, recitals of the issuance of an execution on the judgment and due advertising would be proper, and perhaps essential. If the tax deed under which plaintiff derives title was in existence and contained none of the recitals essential to the validity of the sale, it could not be introduced in evidence; at least, without showing by other records that proceedings to justify a sale of the land for taxes had occurred. [Yankee v. Thompson, 51 Mo. 234; Guffy v. O’Reilly, supra.] But the deed is destroyed, and as to whether it originally contained the essential recitals there is no proof; nor is there proof aliunde of a judgment given against Ford for taxes, based on proper proceedings. Plaintiff’s counsel invoke in aid of the deed, the maxim that all official acts are presumed to have been rightly and regularly done (omnia praesumuntur rite et solemmter esse acta.) Defendant’s counsel insists this maxim has no application to tax deeds or the sales of lands for taxes and that, in such instances, the burden is on the party asserting the validity of the tax sale to show all the steps necessary to a good and valid sale were taken. No doubt this is the general rule established by an uninterrupted current of adjudications. [Morton v. Reeds, 6 Mo. 64; Yankee v. Thompson, supra; Hopkins v. Scott, 86 Mo. 144; Sullivan v. Donnell, 90 Mo. 278, 2 S. W. 275; Gregg v. Jesberg, 113 Mo. 34, 20 S. W. 652; Atkinson v. Improvement Co., 125 Mo. 565, 573, 28 S. W. 861; 2 Cooley, Taxation (3 Ed.), p. 955.] We do not accept as a sound reason for not adhering to the rule in the present case, the proposition advanced by counsel for plaintiff, that as sales of land for delinquent taxes occur in this State, under its present laws, only after a judgment in an action regularly instituted and conducted according to due process and regular procedure, the validity of the sale should be presumed and the burden cast on the party challenging it to show some step essential to its validity was omitted. In support of this position they argue that the rule throwing the onus on the holder of the tax title to show it is good by affirmative proof, was established when such sales were summarily made, instead of after proceedings in due course of law. That the sales they had under review were summary and ex parte, was a fact often commented on by judges in declining to indulge presumptions to uphold them. Nevertheless, the rule against such presumptions rests on a broader foundation, namely; the principle of the common law which requires a person who obtains title to the property of another under legal proceedings which undertook to take the title from the original owner because of his alleged neglect of a public duty, to show the conditions existed on which the power is conferred by law to take the property — that in fact, a public duty had been neglected, and the attempted transfer of title by judicial process was according tó regular procedure. [2 Cooley, Taxation (3 Ed.), p. 915.] This is because of the great loss often entailed by such forfeitures of property rights. We quote from Judge Cooley-’,s work:

“At the common law it was necessary that one who claimed to have obtained title to property of another, under proceedings based upon a neglect of public duty, should take upon himself the burden of showing that the duty existed, and had not been performed, and that in the consequent proceedings the law had been complied with by those who had them in charge. Especially if the proceedings would operate with severity, and be in their effects something in the nature of a fortfeiture, the law was strict in its requirement that his evidence should exhibit the proceedings from step to step, and show that each of the safeguards with which the statute had surrounded the delinquent for his protection in this very emergency had been duly observed. And this tenderness for his interests appears but reasonable. Of what 'service could it be that safeguards were provided, if observance was not essential; if a careless or incompetent officer might overlook or disregard them with impunity and deal with the property of the citizen as if his position as an officer of the government vested him with a dispensing authority over legislation, and authorized him to make, in his discretion, a law for the case as he proceeded.

“This rule of the common law has not been modified by decisions, and is still recognized and enforced where statutes have not changed it. It may consequently be said to be the general rule that the party claiming lands under a sale for taxes must show affirmatively that the law under which the sale was made has been substantially complied with, not only in the sale itself, but in all the anterior proceedings.” [2 Cooley, Taxation (3 Ed.), 915.].

The doctrine thus expressed has been declared in substance by the Supreme Court of this State from its earliest decisions, in construing every enactment which has been on our statute books regarding the sale of land for taxes. [Morton v. Reeds, 6 Mo. 64; Reeds v. Morton, 9 Mo. 868; Yankee v. Thompson, 51 Mo. 234.] But the reason for the acceptance of the doctrine defines its limits. It exists for the protection of the owners of property whose estates are sacrificed by judicial sales for their omissions of public duty. It is for them the law requires various acts to be done before their property can be sold; and if some official fails to perform one of the essential acts, the legal rights of the citizens having been ignored to that extent, his property cannot be taken from him. Hence we think the rule applies only in cases where the contest is between the purchaser at the tax sale, or someone claiming under him, and the original owner or person claiming under the latter; or, at most, in controversies between the holder-of the tax title and some one asserting another title. It ought not to be applied in a case between the owner under a sale for taxes and an intruder who injures the inheritance without any claim of title or pretense of right to enter on the premises. In such an instance the reason fails for making the proceedings leading to the tax sale an exception to the general maxim that official acts are presumed to have been properly done; and, therefore, the maxim ought to prevail. On searching the books we have found decisions and statements by commentators that it does prevail. The qualification of the rule that no- presumption is indulged in favor of the validity of a tax title, but that all the essentials of a valid sale must be affirmatively proved, is defined in a standard treatise in language which shows presumptions are indulged in favor of the validity of a sale as against a trespasser, or a stranger to the • title.

“The rule that the onus is upon those who claim under a tax sale is confined to controversies between the owner of the tax title and the original owner of the land, or those who claim under him, and is never applied in favor of an intruder upon the land; a mere trespasser who cuts timber or does other injury to the inheritance, or a mere stranger showing no title or interest in the premises sold for taxes.” [2 Blackwell, Tax Titles (5 Ed.), sec. 1133.]

The leading authority in regard to presuming in favor of a tax title against a mere intruder who enters without any pretense of right, is Foster v. M’Divit, 9 Watts (Pa.) 341. Until the year 1815 the law in Pennsylvania in regard to tax sales so rigorously exacted of the purchaser of a tax title positive proof of the taking of every antecedent step essential to a valid sale, that it was considered impossible to sustain such a title in a contest with the original owner or any person claiming under him. This infirmity in the law was remedied by legislation; hut prior thereto a series of decisions, of ' which the one cited Avas the pioneer, had established the rule that in a controversy between the holder of a tax deed and a naked trespasser, the validity of the tax title would he presumed. In Foster v. M’Divit, some question was made about the tax claimant having* been in actual possession; but the opinion dealt with the case, too, on the supposition that the defendant was an intruder and the plaintiff out of possession. The trial court had instructed, in effect, that unless the plaintiff and those under AAhom he claimed, had such possession as Avould give title by limitation, the action must fail Avithout regard to whether the defendant’s entry on the land Avas right or wrong, or AAhether he had title to the land. In commenting on this instruction, the Supreme Court of Pennsylvania said:

“Previous to the act of 1815, as has been correctly said, it was repeatedly held, that to rest a title in the purchaser of lands sold for taxes, an exact and minute adherence to the direction of the laws is necessary. It mush appear that every direction and requisite of the acts has been judicially complied Avith. [2 Yeates, 101, 812; 3 Yeates, 284.] But this rigid principle is only true, as betAveen the purchaser at the tax sale, and the person Avho is the owner of the land, and those claiming under him.. It cannot be intended to protect an intruder, or trespasser; for as against a person Avho enters without right, an actual possession or such a constructive possession as a purchaser a,t a tax sale obtains, is all that the law requires.” [Foster v. McDivitt, 9 Watts 344.]

In Dikeman v. Parrish, 6 Pa. St. 210; the same question arose, it being contended tbe plaintiff’s action must fail because he had not proved strict compliance with the law in support of his tax deed. The court remarked that, after showing the. Commonwealth had parted with the land and it had been assessed for taxes in the name of the warrantee, the plaintiff gave in evidence a deed of the sheriff, which Avas potent enough to put a stranger to the title on his defense. In Foust v. Ross, 1 W. & Sar. 501, an ejectment case, one link in the plaintiff’s chain of title was a tax deed, but no possession had been taken thereunder. The court said:

“An actual possession, or such constructive possession as a purchaser at a tax sale has, is all that is required against one who enters Avithout right. All that is required of a plaintiff in ejectment, in the first instance, after showing such title as he purchased to have been granted by the Commonwealth, is to prove -the land Avas sold for taxes assessed, and exhibit his deed as against an intruder. This is such a prima facie title, as to put the defendant to the necessity of showing a better right. A treasurer’s deed and subsequent payment of taxes, is sufficient to recover against one who enters without title. If this case (i. e., Foster v. M’Divit) AA'hich had but lately been published, had been seen at the trial beloAV Ave may suppose this cause Avould not have been brought to this court.”

The same doctrine is declared in Sherer v. Woodman, 10 Pa. St. 511; Crumb v. Burke, 25 Pa. St. 377 and Troutman v. May, 33 Pa. St. 455. In commenting on the foregoing Pennsylvania cases, a text Avriter says their doctrine is probably sound. [Black, Tax Titles (2 Ed.), sec. 455.] Nor is the rule confined to a single jurisdiction. In Smith v. Bodfish, 27 Maine 289, 293, which was an action for cutting and removing timber from the plaintiff’s land, the only evidence of possession offered by the plaintiffs were certain tax deeds; and it was held these Avould have been sufficient to enable plaintiffs to maintain trespass if the defendant liad shoAvn no semblance of ownership and stood in the light of a mere trespasser. In that event, the court said it would not be permissible for him, under the general issue, to object that the Treasurer of the county Avho sold the land for taxes, had not observed the rules of laAV in making the sale. In Bellows v. Elliott, 12 Vermont 569, 575, an action of trespass, the court said regarding the rule requiring a purchaser at a tax sale to prove all legal requirements had been complied with, that there ought to be a difference in the rules applied Avhen the previous owner contested such proceedings, and Avhen they were objected to by a mere stranger or trespasser; but it Avas found unnecessary to pass on the question. In Treat v. Orono, 26 Maine 217, the plaintiff claimed to recover the amount of a promissory note made to the treasurer of the toAvn in payment of land conveyed to the plaintiff by the county treasurer pursuant to a tax sale. The ground on which reimbursement was claimed was that no title had passed by the tax sale and, hence, there was no consideration for the note. It AAras held the law presumed officials performed their duties legally, and the burden was on the plaintiff to show a failure of the consideration by proving every fact necessary to make good his contention that the sale was void. This decision shows the doctrine against indulging presumptions in favor of the validity of tax sales is not of universal scope, but has limitations which prevent its extension to cases in which the facts afford no reason for its application. ’ In Dejarnet v. Haynes, 23 Miss. 600, a person having no interest in the land in dispute was not allowed to question the constitutionality of an act under which the land had been sold for taxes and his adversary had acquired title. In Wells v. Iron Co., 48 N. H. 491, 533, the Supreme Court of New Hampshire said, in commenting on objections raised to a tax deed in the defendant’s chain of title:

“We have not given much attention to these’eight objections to this deed., or to any of them but the seventh. It may be proper to remark in relation to all of them, that they are not made by any party who appears to have any interest in the land described in the deed or in the sale of the same for taxes, and that so long as the plaintiff shows no title to the premises in question, he is in no position to raise any objections to the defendant’s title. No parties interested as owners of the land sold for taxes, have objected ordo object that the sale was not legal and proper; and so long as that is so, it does not lie in the mouth of third persons who show no title or interest whatever in the premises sold, or in the land here in dispute, to object to the sale, or the form of the deed, or to any proceedings connected with such sale.”

In view of the foregoing authorities and the principles they announce, we feel justified in holding in the present contest between the plaintiff and the defendant company, which has shown to have had'no color of title to the timber in controversy or any sort of right to- eater on the land where it grew, that the proceedings leading up to the tax deed in plaintiff’s chain of title should be presumed to have been regular, and therefore, that she had the legal title and constructive possession at the time of the trespass by defendant.

The destruction of the tax deed by fire having been proved, secondary evidence of its contents was admissible. [2 Wigmore, Evidence, sec. 1267; Perkins v. Fielding, 119 Mo. 149, 24 S. W. 444, 27 S. W. 1100; Hall v. Gallemore, 138 Mo. 638, 642, 40 S. W. 891; Stephen v. Metzger, 95 Mo. App. 609, 69 S. W. 625.]

A point to- which we have given serious attention is whether or not the proof of the contents of the lost deed was sufficiently full to justify the admission of secondary evidence; that is to say, whether the essential parts of the deed were substantially established. It is apparent that it would be very impolitic and dangerous to admit secondary evidence of a lost instrument when the evidence did not disclose some of its material parts; because thereby a wholly erroneous conception of the legal effect of the document might be imparted. The rule is that the material parts of the contents must be proved in substance. [3 Wigmore, Evidence, sec. 2105; McDow v. Irwin, 32 Ga. 39, 50; Perry v. Burton, 111 Ill. 138.] In the present case McGhee’s testimony shows the tax deed was executed by the sheriff of the county. The abstract of the deed contained in the memorandum shows it was a tax deed and the dates of its execution, acknowledgment, filing, and recording, the book and page where it was recorded, the consideration paid and the description of the land. Its delivery to the grantee is not shown, bnt may be presumed from the recording, as was decided regarding a sheriff’s deed in Kane v. McCown, 55 Mo. 181. Those constituents unquestionably would be sufficient proof of the material parts of an ordinary deed between parties. This has been adjudged. In Perry v. Burton, 111 Ill. 138, it was said a witness can be expected to remember no more of the contents of a lost deed than the names of the grantor and grantee, about what time it was made, for what consideration and whether it was a warranty or a quitclaim; that to require more would amount in most instances, to the practical exclusion of oral evidence to show the contents of lost instruments. A careful opinion is found in Bennett v. Waller, 23 Ill. 97. In that case the title to great property rights turned on the proof of the contents of a lost instrument, and it was strenuously insisted the testimony adduced did not prove its contents with sufficient fullness to be admissible. On this point the court said the witness gave the proximate date of the deed, swore the consideration was not large, described the land satisfactorily, stated who the grantors and grantees were and that the deed was a quitclaim. This was held proof enough; the court saying that parol proof of the contents of lost instruments must leave no reasonable doubt of the substance of their material parts. The court drew a sound distinction, too, in declaring that what would be vital in one paper, or under certain circumstances, might be quite immaterial in another paper or under other circumstances; that in an action brought on a lost note, the precise sum mentioned in it would be material, while the precise consideration recited in a deed would be of secondary importance. Further, that under some circumstances it would be of the greatest importance to know whether the deed contained covenants and warranties of a certain character; for instance, in an action on an alleged covenant. Now in the present case the sole question regarding the tax deed was whether or not it contained enough to pass Ford’s title to Rousin, the purchaser at the tax sale. We have all the essential elements of a conveyance of that kind except recitals to show prima facie that'the official acts requisite to a sale of land for taxes, were legally performed; and these, we have held, should be presumed in a controversy like this one. Our opinion is the parts of the deed shown in the abstract, taken in connection with the testimony of McGhee, sufficiently revealed its contents to make the evidence admissible. On the general question of how much of a lost document must be shown in order that secondary evidence may be considered, we refer to Perkins v. Fielding; Hall v. Gallemore; McDow v. Irwin, supra; Wilkerson v. Allen, 67 Mo. 503; Thompson v. Thompson, 9 Ind. 323; Collier v. Corbett, 15 Cal. 183; Kenniff v. Caulfield, 140 Cal. 134, 144; Holmes v. Deppert, 122 Mich. 275, 280.

The judgment is affirmed.

All concur.