Ewart v. Davis

Sherwood, C. J. It is altogether unnecessary to notice but one of the numerous points which have been discussed, i: tax sale. since that point is decisive of this case. It is this: Section 195 of the Revenue Law requires that the county clerk “ make a correct copy from the judgment record of the lands and lots against which judgment is rendered in any suit for taxes, interest and costs due thereon, with the description of the property, the amount due on each tract or lot, and the year or years for which [133] the same is due, in the same order as said property may be set forth in the judgment book, and shall attach thereto a correct copy of the judgment and order of sale of the court, and his certificate of the truth of such record or copy, which record or copy so attested shall hereafter constitute the process on which all real property, or any interest therein, shall be sold for taxes, as well as the record 'for sale of such property, and the said copy shall be deemed and held to be a special execution against the tracts of land and lots of ground therein described to enforce the liens of the State thereon for the taxes,” etc. The next section provides that the record or copy before mentioned, shall be known and designated as the “special execution record.” In the ease before us, the law quoted has not met with compliance, in that the “ special execution,” “ the process,” “ the record for sale of such property,” “ the special execution record,” has not attached thereto, a copy of the judgment.and order of sale of the county court, nor is there thereto attached, the clerk’s certificate in accordance with the statutory requirement already quoted. This failure we regard as fatal to plaintiff’s case. The so-called execution not containing a copy of the judgment rendered and order of sale made by the county court, not being authenticated by either the signature or seal of the clerk, must be regarded as a nullity in law, and consequently conferring no power whatever on the collector to sue ; in short, as so much blank paper, or no execution at all, since it lacks the essential elements of a judgment and order of .sale, and the authenticity of the attestation of the clerk. ~Were we discussing an ordinary /z. fa., and a sale of land ■thereunder, no one would pronounce a sale valid in circumstances similar to those in the present instance, and we do not see how the position of the plaintiff is any whit bettered because of this being a tax sale instead of an ordinary one by the sheriff. No sheriff, we apprehend, has ever had the temerity to sell the property of a judgment [134] defendant under a paper so lacking as the present one in all the indicia of authority and genuineness. In Indiana, “ a paper/’ as it is exj>ressively termed, was issued by a justice of the peace to a constable, which merely recited the rendition of a judgment as appeared of record on his docket, with the addition of the words,, “by levy and sale of the goods” of the judgment defendant, “ and make return thereof within six months from date,” but contained no words of command or direction to the constable, and it was held that such “ a paper ” did not justify the officer in levying on the goods of the defendant, because of lacking such mandatory words. Gaskill v. Aldrich, 41 Ind. 338. Now in the case at bar, the order of the county court, as provided for in section 192 of the Revenue Law, is the command of the court to the collector to sell the property of the defendant, but no such order was ever delivered to the collector; for the clerk of the county court, Putnam, testified expressly that the “ special execution record ” in evidence was the process issued by him to the collector for the sale of the lands in controversy, and consequently we can but hold that he was powerless to act-in the premises. 2. tax deed prima facie valid. And this conclusion is by no means affected because-section 219 of the Revenue Law makes the tax deed prima facie evidence of its own recitals, and allows such deed and the title thereby conveyed to be overthrown by showing one of the following facts “only 1st, That the land conveyed by such deed was not subject to taxation, etc.; 2nd, That the taxes due thereon had been paid before sale ; 3rd, That the land had been duly redeemed, etc. Formerly the law was so drawn that the recital of the tax deed was made conclusive evidence except as to the three particulars just noted. But after the decision in Abbott v. Lindenbower, 42 Mo. 162, determining that the legislature had no constitutional power to make such deeds conclusive evidence to such an extent as to cut off all in [135] quiry as to whether steps vitally essential to the exercise of the taxing power had been taken, the legislature met and changed the section in question, so as to make it read as already quoted. This change is most significant, coming so soon, as it did, after the ruling mentioned and evidently means “ something.” Nor was the change of “conclusive” to “primafade” the only change made by the legislature at that session. Eor by section 211, (Laws 1872, p. 127,) a new one, it is provided that: “The assessment books, and all books, papers and records in the office of the clerk of the county court appertaining to the subject of taxation, or copies thereof duly certified by such clerk, shall be evidence in all courts in all controversies concerning the validity of the sale of lands for taxes;” as if the legislature were not only not content to merely reduce the tax deed from the high plain of conclusive, to that of prima fade evidence, but went further and'pointed out the very means whereby the prima fade character of the tax deeds could be controverted and overthrown. And aside from the very pointed and pertinent provisions of section 211, supra, it must be obvious to every one that a tax deed, if but prima fade evidence of the truth of the recitals it contains, cannot in the nature of things, occupy any better footing than would a sheriff’s deed, which the law, also, declares to be prima fade evidence. To hold otherwise and to hold that the tax deed is but prima fade evidence of all the matters it recites, and yet not subject to be controverted except because of the three things section 219 contains, in effect would be to restore the law to its former condition in defiance of the constitution and of the legislative will. The rule is a familiar one, that, if possible, every section of a law should be made to harmonize with every other section of the same statute, rather than conflict therewith. Making the endeavor to harmonize the different sections of the act under discussion, we have reached the [136] conclusion that all that is intended by section 219 and the exceptions it contains, is simply this: That Where a plaintiff in ejectment comes into court with a tax deed regular in all its features, he makes out thereby a prima facie case and may there rest; the defendant may thereupon, by availing himself of the provisions of section 211, supra, show any matter which, aside from mere omissions or irregularities, goes to establish a substantial non-compliance with statutory provisions, as ex. gr.: that no judgment, or valid judgment, was ever rendered against the land; or that no special execution was ever delivered to the collector; and in case the defendant fail in manner as aforesaid, it is still open to him to avail himself of one of the exceptions section 219 contains, and show that notwithstanding the title of the plaintiff is valid as to all else, yet that still it must fail, because of the existence of one of the three facts which that section pronounces sufficient to invalidate a title otherwise good. For these reasons we affirm the judgment. All concur. In Ewart v. Hayter, Ray, J., delivering the opinion of the court, said: This case on all material points, is substantially like that of the same plaintiff against Ishmael Davis, decided at the present term, and for like reasons the judgment is affirmed. All concur.