Williams v. McLanahan , 67 Mo. 499 ( 1878 )

Norton, J.

— This is an ejectment suit, instituted in the circuit court of Audrain county, for the recovery of the possession of lots 28, 29, 30, 31 and 32 in the town of Mexico. The answer admitted possession, but denied that plaintiffs were the owners of, or entitled to, the possession of said lots. Upon trial, judgment was rendered for the defendants, from which the plaintiffs have appealed to this court. Plaintiffs offered in evidence, in support of their title, a tax deed executed by the collector of.Audrain county, purporting to convey the lots in controversy to them. To the introduction of this deed defendants objected on the ground that it was void on its face. The ol jec ion was sustained, and this action of the court is the error complained of. When lands are sold for taxes, the statute prescribes a form of deed to be executed by the collector to the purchaser, and makes such deed prima facie evidence of the facts recited therein. 2 Wag. Stat., Sec. 217, p. 1205. Among other things required to be recited is the date of the execution, or order of the county court authorizing such sale. While the deed recites the judgment of the county court, it does not comply with the requirement of the statute in reciting the date of the order or execution which issued thereon, and, for this reason, we think the objection taken to the reception of the deed as evidence was well taken. The execution confers the power to sell, and it has been held that the recital of it, as well as its date are essential recitals.

In reference to sheriff s deeds, it was held in Wilhite v. Wilhite, 53 Mo. 74, that “ the enumerated provisions of the statute which would seem to be essential recitals, are the names of the parties to the execution, the date when issued, the date of the judgment,” &c. In reference to tax deeds, it is laid down in Blackwell on Tax Titles, Sec. 5,p. 401, “When the form of a deed has not been prescribed by law; but the statute simply authorizes the execution of a deed to the purchaser, any deed, which, according to the rules of the common law, would be sufficient to transfer the title of the former owner, and vest the estate in the purchaser, is regarded as an operative mode of conveyance, provided it recites the power under which it was made and is accompanied by proof that the law was strictly complied with. But when the statute prescribes the particular form to be observed in the execution of the deed, that form becomes substance and must be strictly pursued or the deed will be void.”

Judgment affirmed with the concurrence of the other judges.

Affirmed.