Burkham v. Manewal

VALLIANT, J. — This is a statutory proceeding-under section 650, Revised Statutes 1899, to quiet title to certain real estate in Madison county. It is wild land and has never been occupied. The plaintiff’s title comes in a direct line from the United States through patents and subsequent deeds duly recorded. The de — 505 — fendant’s title comes through sheriff’s sales under special executions on judgments for delinquent taxes. The land lies in sections 5, 6 and 7, township 31, range 7, east. John Collins purchased from the United States that part of the land in question that lies in sections 5 and 6, and he and his wife by deed dated January 23, 1860, recorded March 8, 1860, sold and conveyed to plaintiff, Charles B. Burkham. So the title stood on the record on July 15', 1882, when a suit was filed in the circuit court of the county in the name of the State at the relation of the collector of revenue against John Collins and John Burkham, defendants, to enforce against the land a lien for back and delinquent taxes to the amount of $78.82 alleged to be due on the land. There was no service of summons, but there was an order of publication directed to the defendants named in that suit; there was no appearance of defendants. Judgment decreeing the lien for taxes as prayed was rendered by default and special execution awarded. Under that execution the land was exposed to public sale and struck off to John W. Dunaway, to whom the sheriff executed a deed which was duly recorded.- Whatever title passed to Dunaway at that sale has since passed and is now held by the defendant Manewal in this suit. So much of the land in suit as lies in section 7 was purchased from the United States by George Hake.' By deed dated January 31, 1860, recorded March 7, 1860, George Hake and wife conveyed it to Charles B. Burkham, the plaintiff. So the title to that part of the land stood on the record on January 17, 1878, when a suit was filed in the circuit court in the name of the State at the relation of the county collector, plaintiff, against C. B. Burkham, defendant, to subject the land to a lien for taxes for the years 1868, 1872, 1873 and 1874, amounting to $20.87 alleged to be due on the land. There was no service of summons in that case, but — 506 — there was an order of publication in which the defendant therein was described as C. B. Burkham. There was no appearance entered and judgment by default was rendered declaring the lien established and awarding special execution thereon. Under that execution the land was exposed to public sale and it was struck off to certain parties for the sum of five dollars, to whom the sheriff executed a deed dated March 29,1879, which was afterwards, to-wit, September 11,1880, duly recorded. Whatever title the purchasers at that sale acquired has passed by subsequent deeds and is now held by the defendant in this suit. The plaintiff has paid no taxes on the land, since 1867; the defendant since his purchase has paid taxes on the land lying in sections 5 and 6 to the amount of $35.35, and on that lying in section 7 to the amount of $20.74. Plaintiff makes no offer to refund the taxes paid by defendant or by those under whom he claims. The decree of the court was to the effect that the land belonged to the plaintiff and that defendant had no interest in it. Prom that judgment comes this appeal. I. Appellant does not very seriously contend that any title passed by the sheriff’s sales under the special executions in the back-tax suits. There is really no room for such a contention. When those tax suits were instituted the lands stood on the record in the name of Charles B. Burkham. There was therefore no excuse for not describing him by his full Christian name as the record owner of the land. In the suit aimed to affect the land in sections 5 and 6 this plaintiff was not mentioned at all either by name or initial, and in the suit involving the land in section 7; his Christian name was indicated by initials only. The law on the subject of notice given to the owner in such case by publication, when the initials of his Christian name only are given, has been heretofore thoroughly discussed by this court, — 507 — and the law as we have declared it will he found by reference to the following eases: Skelton v. Sackett, 91 Mo. 377; Elting v. Gould, 96 Mo. 541; Turner v. Gregory, 151 Mo. 100; Vincent v. Means, 184 Mo. 327, l. c. 344; Spore v. Ozark L. Co., 186 Mo. 656; Gillingham v. Brown, 187 Mo. 181. The doctrine of those cases is that, where, as in this case, the record title to the land gives the owner’s full Christian name, notice by publication addressed to him by the initials of that name only is not sufficient to give the court jurisdiction over him and therefore a judgment by default on such notice, as to him and his interest, is void. If the owner is known only by the name given in the title record and the name is there given by initials only, as it was in the case of Elting v. Gould, above cited, that fact makes an exception. The decision in Mosely v. Reily, 126 Mo. 124, is not in conflict with this rule of law. In that case both parties were claiming title from the same man, one by a deed from him in which he signed only the initials of his Christian name, and the other through a sheriff’s deed under a tax judgment obtained by default on notice through an order of publication describing him by the same initials ; the court held that the party who claimed under the personal deed signed with the initials only could not collaterally attack the validity of the sheriff’s deed on the ground that it was based on an order of publication giving the same initials. We hold that the judgments in the tax suits in the case at bar were void. II. But appellant does seriously insist that respondent has slept too long on his rights, that he has paid no taxes on the land since 1867, and now should not be allowed to have the tax deeds cancelled without tendering to defendant the money paid out by him for taxes. This is wild land, it has never been in the actual — 508 — occupation of any one. Plaintiff for that reason could not have sued defendant or any one through whom defendant claims in ejectment, and, being out of actual possession himself, the plaintiff could not, until the enactment of the statute under which he now sues, have maintained a suit in equity to remove the cloud from his title. [Graves v. Ewart, 99 Mo. 13, l. c. 18.] It was not until 1897 that the statute which is now section 650, Revised Statutes 1899, was passed, which authorized one holding the legal title to land, but out of possession, to maintain a suit to quiet his title. Section 9319, Revised Statutes 1899, declares that any one putting a tax deed on record shall be deemed to have set up such a title to the land as will enable one claiming to own the same to maintain a suit for the possession thereof against the grantee in such deed or one claiming under him. That statute was first enacted in 1872, and has been in our books ever since. [Laws 1871 -2, p. 130.] It was intended to affect rights growing out of sales of lands for taxes under the law as it then was. At the date of that act the system of collecting delinquent taxes by suits in the circuit court as we now have it had not been adopted; the present system was adopted in 1877. [Laws 1877, p. 386.] It has been decided by this court in Childers v. Schantz, 120 Mo. 305, and Vastine v. Laclede L. & I. Co., 135 Mo. 145, that section 9319 does not apply to a sheriff’s deed under special execution to enforce a judgment in a back tax suit. The plaintiff could not have brought his suit before the act of 1897 gave him the right to do so, and since he has brought it within five years of that time he is not barred by the Statutes of Limitations, and is not guilty of such laches as would bar him in equity, even if this, were a suit in equity. III. Appellant thinks that as he has paid taxes on this land he ought to be subrogated to the rights of the — 509 — State and have a lien declared for the amount of his ■outlays. At the time appellant paid these taxes there was no law in this State giving him a lien on the land for any such purpose. [Rowe v. Current River L. & C. Co., 99 Mo. App. 158.] There was no such relation between him and the plaintiff as would suggest the idea that he was paying the taxes at the request or for the benefit of plaintiff. The contrary appears; he was aiming to help himself only. One who, unsolicited, and with no interest of his own to protect and no obligation to do so, pays the taxes due on the lands of another is a mere volunteer, and acquires thereby no right as against the owner. Appellant relies on the act of 1903 (Laws 1903, p. 254), which declares that no one shall maintain a suit at law or in equity to set aside a tax deed unless in his petition he offers to refund the taxes paid by the defendant and those under whom he claims. But that act was not passed until after this suit was begun and it had not gone into effect when the judgment appealed from was rendered; it, therefore, has no influence on the rights of the parties in this case. There is no error in the record. The judgment is affirmed. All concur.