Duff, Plaintiff in Error, v. Neilson

Supreme Court of Missouri1886-10

90 Mo. 93

Summary · law.co

Holding. The judgment for Neilson is reversed and the case is remanded. The tax deed was void due to the collector's failure to file the required affidavit with the county clerk and because the deed lacked the date of the special execution on its face when recorded, which defects could not be cured by an informal after-the-fact insertion of the date.

Duff brought an ejectment action to recover a parcel of land in Versailles. Neilson claimed ownership based on a tax deed issued under an 1872 law. The court examined the validity of the tax deed and the proceedings that led to it. The opinion identifies multiple defects: the county clerk did not receive and record the collector's affidavit as required by statute, which was essential to demonstrate that proper notice had been given before judgment could be rendered for the tax sale. Additionally, the tax deed itself was void on its face because it lacked the date of the special execution when first recorded—a detail the statute expressly required. Although the date was later filled in and the deed re-recorded, this correction was improper because it was not done by the collector and was not accompanied by a new acknowledgment, which would have been necessary to cure the defective deed. Because the deed was void, the special statute of limitations protecting tax deeds could not operate.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a tax deed is valid when the collector's affidavit is not recorded with the delinquent lands list
Whether omission of the execution date from a tax deed is a fatal defect
Whether a void tax deed can be corrected by informal amendment and re-recording without collector's acknowledgment

Procedural posture

Ejectment action brought by Duff against Neilson for recovery of land, with Neilson claiming title under a tax deed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Sherwood, J.—

Ejectment for block twenty-nine, in the toAvn of Versailles. Defendant claims under a tax deed executed under the law of 1872.

I. It sufficiently appears from dates in the transcript that the motion for a new trial was filed Avithin the statutory period ; and this is all that is required.

II. Section 190 of the Laws of 1872 (2 W. S., p. 1198), required the collector to file with the county clerk a list of delinquent lands and lots at least five-days before the commencement of the term at Avhich application for judgment was to be made, and required the clerk to receive and record said list in a well bound-book called the “judgment book.” That section also-required the collector to attach to said delinquent list his affidavit declaring that the list was correct, etc.;that he was unable to collect the taxes on the delinquent lands; that such taxes remained due and unpaid, and that due notice of application for judgment and of sale had been given as required by law. This affidavit the clerk was to enter on record at the foot of the delinquent list, against which the judgment was to be rendered. This section of the statute did not meet with compliance-in this instance, and of course the county. court had no- valid basis on which its judgment for the sale of the land for taxes could rest. The object of that section of the statute in requiring the affidavit of the collector was to show that the notice of the intended judgment had been given. Without such notice no valid judgment could be pronounced.

III. Moreover the tax deed was void on its face. When first recorded it contained no statement as to the date when the special execution, under which the property was sold, issued. The statute is express on this point, that the date of such special execution shall be given. And it has been ruled that this recital in the tax deed is essential; and its absence fatal. Williams v. McLanahan, 67 Mo. 499. And the complexion of this case is not altered for the better by reason of the fact that when the omission of the date was discovered- the omission was supplied and the deed re-recorded, inasmuch as it does not appear who supplied the omission.Nor does it appear that if the collector did make the correction that he re-a.cJcnowledged the deed before it was again put to record. If, as already seen, the deed was void without the recital of the date, etc., so also was the acknowledgment of such a deed, and, therefore, the only way to correct the deed so far as mere form was concerned, was for the collector either to make and acknowledge a new deed out and out, or else to insert the date, etc., in the old deed and then re-acknowledge it; but this was not done. The defendant, testifying on this point, says: “After the deed was recorded, I noticed the blank space in the deed, I then presented it to the collector and clerk of the court, and asked to have the blank filled; the clerk looked at the record of the sale and the date of the execution, and we then put the date in the deed. Afterwards I again filed the deed •for record.”

IV. Since the deed was void, by reason of the fore going matters, the special statute of limitations would not run.

The judgment is reversed and the cause remanded]

All concur.