Reeds v. Morton

Scott, J., delivered the opinion of the court. This was an action of ejectment brought by Morton to recover the possession of a tract of land containing two thousand arpents, situated in Lincoln county, in which Morton recovered judgment. Morton claimed under Paul Chouteau, to whom a concession was made by the Spanish gavernment, which was afterwards confirmed to him by the authority of the laws of the United States. Chouteau conveyed to Laveille and Morton, for the sum of three thousand two hundred and fifty dollars; and Laveille to Morton, for the sum of three thousand four hundred and forty dollars. Reeds claimed the land in controversy under Joseph R. Suggitt, who claimed under a deed from the auditor of public accounts, which was executed on the 25th June, 1834 in pursuance of a certificate of sale made to the said Suggitt, which bore date on the 20th day of June, 1832, for the non-payment of the State and county taxes due on the said land for the year 1831. The amount of the taxes, penalties and costs was nine dollars and seventy-seven cents. The certificate of sale was recorded on the 13th January, 1836, and the deed of the auditor on the 14th Jan’y of the same year. The deed of the auditor was acknowledged, but the certificate was placed on record without acknowledgment. After a great deal of testimony had been offered in evidence, much of which was rejected, the certificate arid deed above referred to were produced in evidence to the court, and were rejected, to which exceptions were taken by the defendant Reeds, who has brought this case here. The merits of the case depending on the facts above set out, and as the defendant cannot maintain his defence without showing the validity of the certificate and deed above referred to, we do not deem it neces — 874 — sary even to state, much less to determine, the many points which have been raised in the argument of this cause. The 28th section of the act to provide for levying, assessing and collecting State and county taxes, approved March 1st, 1825, after prescribing the manner in which the several collectors of the revenue shall sell the lands of delinquent residents who fail to pay their taxes, directs that the collector shall deliver to the purchaser of any tract of land or lot, or any part thereof, a certificate of such sale, which certificate shall be recorded in the same manner as deeds for lands; and from and after the time of such sale, the lands and lots so sold shall be assessed to, and the taxes paid by the purchasser. The 31st sec. of the same act prescribes that lands thus sold may be redeemed by the owners thereof within two years from and after the sale, and directs that if they are not redeemed within that time, a deed shall be made to the purchaser by the collector. The 26th sec. of the same act, modified by the act of January 23d, 1829, prescribes the manner in which the auditor shall conduct the sale of delinquent non-resident lands, and after directing that they shall be advertised and sold for the taxes, penalties, &c., proceeds to enact that in all other proceedings relating to the sale of said lands, the auditor shall perform the like duties as are required by this act of the collector, in case of sales made by him, and all subsequent proceedings had thereon shall be as is required by this act, in case of lands sold by the collector, and the auditor performing in that behalf the duties enjoined on collectors in the cases aforesaid. The 29th section of the same act makes it the duty of the collector immediately after a sale for taxes, to make out and certify duplicate lists of sales made by him to individuals, specifying the name of the person to whom sold, describing the land sold, &c.; one of which lists so certified he shall deliver to the clerk of the county court, and the other to the recorder of the county, and the clerk and recorder shall keep such lists in their offices for the inspection of any person interested. The 11th section of the act of Jan’y 3, 1827, amendatory of the preceding act relative to the assessing and collecting State and county taxes, as modified by the act of Jan’y 23d, 1829, makes it the duty of the auditor, upon all sales of real estate for the taxes due thereon, to transmit to the recorder of the county wherein the real estate is situated, a copy of the advertisement of sale, certified to be a true copy, and a further certificate that the provisions of the law in such cases made and provided, have been complied with; which advertisement and certificate shall be recorded by the recorder among the deeds, and a copy — 875 — of such record shall be prima facie evidence of the facts contained in such certificate, whenever a sale made under such advertisement shall come in question; and the certificate of sale to be given to the purchaser in such case, shall always refer to the advertisement of record under which such sale was made. This case was once before in this court, (6 Mo. R. 64,) andón the authority of the case of Williams vs. Peyton’s lessee, 4 Wheat. 77, a principle was established by a majority of this court, to which we still adhere. The defendant in that case, claimed the land as a purchaser at a sale made for the non-payment of a direct tax imposed by act of Congress. On the trial the defendant proved that the tax had been assessed against the plaintiff on the land in dispute, and also gave in evidence the deed of the officer. It was also shown that the plaintiff had not paid the tax, nor redeemed the land, and then it was contended that the evidence was enough to show that the land had been duly advertised by the collector, and that the other requisites of the law had been complied with, so as to warrant the execution and delivery of the deed. But the court, Marshall, C. J., delivering the opinion, held otherwise, saying, that as the collector had no general authority to sell lands at his discretion for non-payment of tax, but a special power to sell in particular cases described by the act, those cases must exist, or the power does not arise, it is a naked power, not coupled with an interest, and in all such cases, the law requires that every pre-requisite to the exercise of that power, must precede its exercise. The agent must pursue his power, or his act will not be sustained by it. As to the deed being evidence of the acts which ought to have preceded it, it was said, that the party who sets up. a title must furnish the evidence necessary to sustain it; that if the validity of a deed depends on an act in pais, the party claiming under it, is as much bound to prove the performance of the act, as he would be to prove any matter of record, on which the validity of the deed might depend. It forms a part of the title; it is a link in the chain which is essential to its continuity, and which it is incumbent on him to preserve. A person should examine these facts before he becomes a purchaser, and the evidence of them should be preserved as a necessary muniment of title. Therefore the deed in such cases is unavailing entirely, unless the performance of the prerequisites to the giving it be affirmatively shown. A similar doctrine has been asserted in other cases in the supreme court of the United States. Stead’s ex’r vs. Conage, 4 Cr. 403; Parker vs. Rules’ lessee, 9 Cr. 64. In the case of Jackson vs. Sheperd, 7 Cow. 88, the supreme court of New York, speaking of the case of Williams vs. Peyton, says, — 876 — the principles on which it is founded are of general authority and application, and seem to be incontrovertible. The court of appeals in the State of Virginia, in the case of Nalie vs. Fenwick, 4 Ran., maintain the same principle, and hold that when land is sold by a sheriff for the non-payment of taxes, it is incumbent on the purchaser to show that all the steps have been regularly taken, which the law requires in such cases. The same principle prevails in New Hampshire, 3 N. H. Rep. 340, Waldron vs. Tuttle, and is recognized in Louisiana, 6 Mar. Nancarrow vs. Weathersbee. The case of Ives vs. Lynn, 2 Conn Rep. and the case of Hickman vs. Skinner, 3 Mon. 311, and others in Kentucky, maintain a contrary doctrine, but we do not think their weight is sufficient to overturn the authority of the above cited cases determined by the first courts of the Union, and warranted by principles of law. The case of Pejupscut vs. Ranson, 14 Mass. 147, affords no aid or authority to the above cited cases from Connecticut and Kentucky. In that case the purchaser, and those claiming under him, had been in possession of the land in controversy since the sale, and lor upwards of thirty years} the deed of the officer was read in evidence, and the facts and circumstances going to show that the pre-requisites of the law had been complied with* were left to the jury, with an instruction that they might presume every thing required by law had been done, from the great length of time which had intervened between the sale and the commencement of the suit. This case evidently rests on a different principle from those above cited. We adhere to the foregoing doctrine asserted when this case was formerly in this court. That the officer in making a sale of lands for the non-payment of taxes, has a mere power which must be strictly pursued, and all the prerequisites must be shown to have existed which were necessary to have enabled him to exercise it in a valid manner. We do not pretend, however, that this principle of law cannot be modified or abolished, as to the wisdom of the legislature may seem best. To what extent, it was modified or altered by the 11th sec. of the act of January 3d, 1827, we do not now think it necessary to determine. Whether it was intended that the further certificate provided for by that section should be prima, facie evidence that the law had been complied with so far as the acts of the auditor were concerned, or whether it was intended to be evidence that the law had been complied with by all those who had any agency in assessing and collecting the — 877 — revenue, it is clear that it could not be evidence of facts to be done subsequently, and that too by the person to whom the sale was made. The 28th section of the act of 1825, above cited, required the certificate given to the purchaser at the tax sale to be recorded; and a subsequent section provided that if lands sold for the taxes were not redeemed within two years from the date of the sale, the auditor should then make a deed for them. The sale in this case took place on the 18th une, 1832, and the certificate bore date the 20th of the same month, and was not placed upon record until the 13th January, 1836. The deed for the land was executed to the purchaser on the 25th day of June, 1834. If the certificate was not recorded before the execution of the deed, it could hardly have been of any avail to have recorded it afterwards. The recording of the deed answered all the purposes designed by a record of the certificate. Here then is a material act to be done by the purchaser, which he has failed to do. The owner of the land had two years within which he might have redeemed it. Had the certificate of sale been seasonably placed on the record of deeds, might not some one have seen it and communicated the fact 4o the owner? might not some rumor by that means have been spread abroad which would have reached his ears? But the party has withheld this instrument from record, when he was required by law to place it there, and we can see that the owner of the land may have sustained an injury in consequence of this neglect. But according to the principles above asserted, we do not feel ourselves called upon to give reasons why this thing should have been done. He who wishes to obtain an estate worth thousands, for less than ten dollars, under and by virtue of the law, is not to be permitted to ask why he should be required to do this or to do that. It is an answer, that it is required by law. Ita lex scrzpta est. He claims by the law — then by that law.let his pretensions be judged. Ives vs. Lynn, 2 Cow. Rep. 505; Tilson vs. Thompson, 10 Pick. It was maintained in the argument for the defendant, that the object of the law in requiring the certificate to be recorded, was that it might be known who was. liable for the subsequently accruing taxes on the land. That the 29th sec. of the act of 1825, above cited, required two descriptive lists of the lands sold for taxes to be sent to each county; one to the clerk of the county court, and the other to the recorder; by this means there was notice communicated to those whose lands had been sold. From the records of this case, it does not appear that the purchaser paid the taxes subsequently accruing, or that the pro-.. ions of the .above sections were complied with. But even it they hai an, — 878 — if a list of the lands sold had been sent, one to the clerk of the county court, and another to the recorder, to be kept in their respective offices for the inspection of all interested, still if the certificate had been placed among the record of deeds, would it not have multiplied the chances of bringing to the owner a knowledge of the fact that his land had been sold. Thousands examine the record for deeds, who would never inquire for the list of lands sold for taxes, in which but comparatively few are interested. We are of opinion that the object of the law in requiring the auditor’s certificate of sale to be recorded, was not that it might be known who was liable for the accruing taxes on the land sold, but it was designed as one means of communicating to the owner the fact that his land had been sold. That the placing of it on record after the time for redemption was past, was a nugatory act; that it should have been seasonably recorded, and the failure to do so renders it void, and by consequence the auditor’s deed. Tl¿p other Judges concurring, the judgment will be affirmed.