text:
    MISSOURI LUMBER & MINING COMPANY v. JEWELL, Appellant.
    Division Two,
    December 22, 1906.
    1. EJECTMENT: Adverse Possession: No Evidence. Defendant bought the improvements on a tract of land, but hot the land itself. At that time he thought it belonged to the Government and Was so advised, and wrote to the Land Office and was advised by it that the land had been granted to a named person. A year later he wrote to the patentee’s grantee, and was informed that he owned the land, and would sell it, but would not execute a warranty deed for it. Thereafter he remained in possession, but there is no evidence that he, at the time he wrote to the grantee, was claiming adversely to him, nor does he say when his possession began to be adverse, but says that when the grantee refused to make a warranty deed he concluded he had as good a title as he or any one. The grantee paid the taxes. Held, that defendant’s possession at its inception was not adverse, nor does the testimony indicate that his possession at any time after he wrote to the grantee was changed from a friendly to an adverse possession, and the burden being on defendant to fix the time when he began to hold adversely to the true title, the court properly gave a peremptory instruction for plaintiff.
    2. -: -: Friendly: Notice to Real Owner.- The defendant who relies on adverse possession, if his occupancy in its inception was permissive or friendly to the title, must show the actual knowledge of the real owner that he claimed in opposition to and in defiance of his title, or he must show that such occupancy or user was so open and notorious and inconsistent with and injurious to the rights of the true owner that the law will authorize from such facts the presumption of knowledge of such facts by the true owner.
    Appeal from Shannon Circuit Court . — Ron. W. N. Evans, Judge.
    Affirmed.

      A. H. Livingston for appellant.
    (1) Defendant took possession of the land at the time expecting to obtain the legal title thereto, and when he learned that no title could be had, other than a quitclaim, and that based on a tax title, and having lost money in tax titles, he then determined to hold and claim the land as his own. He claimed the land as his; it was called and known as his; he put valuable improvements thereon and had all the tract described in his answer actually inclosed for more than ten years before the institution of this suit. The court committed palpable error in directing a verdict for plaintiff. Boyce v. Railroad, 168 Mo. 583; Wilkerson v. Eilers, 114 Mo. 245; Miller v. Rosenberger, 144 Mo. 292; Hunnewell v. Burchett, 153 Mo. 440; Turner v. Railroad, 112 Mo. 542. (2) While appellant openly asserts his claim of ownership and the uncontradicted evidence shows that this fact was notorious, yet this was not necessary, or important, as his possession was open, continuous and notorious and this is everywhere held to be tantamount to claim of ownership. Boyce v. Railroad, 168 Mo. 583; Turner v. Railroad, 112 Mo, 542; Swope v. Ward, 185 Mo. 316. (3) If a peremptory instruction was proper under any circumstance on the whole ease, it should have been given for defendant and not for plaintiff, but under the most favorable views for plaintiff the facts should have been submitted to tbe jury under proper instructions on adverse possession. Wolff v. Campbell, 110 Mo. 114; Mather v. Walsh, 107 Mo. 121.

      John C. Brown and Orr & Luster for respondent.
    (1) Defendant’s possession in its origin was in accord with or in subservience to the true title, and the presumption is that such possession continued friendly and subordinate. Hunnewell v. Burchett, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 440; Pitzman v. Boyce, 111 Mo. 392; Pharis v. Jones, 122 Mo. 125 ; Crawford'v. Ahmes, 103 Mo. 88; Brown v. Simpson, 67 Texas 325; Davenport v. Sebring, 52 Iowa 364; Schleicher v. Gotlin (Texas), 20 S. W. 120; Norton v. Collins (Texas), 20 S. W. 1.113; Land Company v. Rogers (Texas), 32 S. W. 713. (2) Acts or assertions which indicate a change in the character of the holding or some notice or knowledge of the change of the nature of the possession from a friendly or subservient to an adverse holding should be brought home to the true owner. Pitzman v. Boyce, 111 Mo, 392; Budd v. Collins, 69 Mo. 129; Meir v. Meir, 105 Mo. 411; Estes v. Long, 71 Mo. 605; Wilson v. Lerche, 90 Mo. 473; Gordon v. Eans, 97 Mo. 603; Wilkinson v. Thompson, 82 Mo. 317; Hamilton v. Boggess, 63 Mo. 249'. (3) When possession in its inception is subordinate to the true title it cannot be converted into one of hostility by the mere intention of the party in possession, not expressed by acts which indicate a change in the character of the holding. Hunnewell v. Burchett, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 440 ; Pitzman v. Boyce, 111 Mo. 392; Meir v. Meir, 105 Mo. 430; Budd v. Collins, 69 Mo. 129; Gordon v. Eans, 97 Mo. 603; Warcester v. Lard, 56 Mo. 265; Clarke v. Kinley (Texas), 25 S. W. 1096; Haffendorfer v. Gault, 84 Ky. 124; Lamb v. Fass, 21 Me. 240. (4) The burden is upon the defendant to show the exact time he began to hold possession adversely and to also' show that his change from a friendly to an adverse possession under his claim of ownership was by such acts as would indicate a change in the character of the holding, and that the real owner had knowledge of such act, or notice that appellant’s possession had changed to an adverse holding. Hunnewell v. Burchett, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 4.40; Pitzman v. Boyce, 111 Mo. 392; Budd v. Collins, 69 Mo. 129; Choteau v. Riddle, 110 Mo. 372; Harper v. Morse, 114 Mo. 317; Wilkinson v. Thompson, 82 Mo. 317; Hamilton v. Boggess, 63 Mo. 249.
   GANTT, J.

Action of ejectment commenced July 1, 1903, for the west half of the northwest quarter of section 29, township 30, range 6, Shannon county, Missouri.

The petition is in the statutory form. Ouster is laid as of January 2, 1902. Defendant in his answer admits possession of part of the premises described, as follows, “Commencing twenty-seven rods south of the northwest corner of section 29, township 30, range 6, running thence south seventeen rods, thence southeast fifteen rods, thence south eighteen rods, thence southwest twelve rods, thence south fifty-eight rods, thence east eighty-eight rods, thence north seventy-five rods, thence west sixty-seven rods to place of beginning,” but denies possession of any other portion of the lands described in the petition and disclaims all right, title or interest therein. Defendant for further answer to said petition says that as to the land herein described he has. been in the open, notorious and adverse possession thereof for ten years next before the institution of this suit, claiming to be the owner thereof; that plaintiff’s right of recovery of such premises is barred.

The reply denied the new matter pleaded in the answer and every allegation thereof.

On the 18th day of September, 1903, the cause came on for hearing before the circuit court and a jury. At the close of all the evidence in the case, the court at the request of the plaintiff instructed the jury to return a verdict for the plaintiff, which was done. The defendant duly excepted at the time to the giving of said instruction. Within due time the defendant filed his motion for a. new trial, assigning as a ground therefor that the court erred in sustaining the demurrer to the defendant’s evidence and directing a verdict for the plaintiff, which motion the court overruled, and the defendant duly saved his exceptions.

The evidence on the part of the plaintiff showed a regular paper title by proper conveyances, beginning with a patent from the United States Government to John Smith for the land described in the petition, down to the plaintiff in the case. The plaintiff’s immediate title consisted of deeds from Poppleton and Stout. The deed from Poppleton to plaintiff was dated December 26,1901, and was recorded January 3,1902, and the deed from Stout to plaintiff was dated December 30, 1901, and was recorded January 30, 1902.

Plaintiff then introduced C. C. Carlton, who testified that he was a surveyor and timber inspe'ctor of the plaintiff company, and had surveyed the land described in this suit, and that the defendant had about thirty-eight acres in the west half of the northwest quarter in cultivation. He made this survey about the 25th of April, 1903.

John Fleming testified that he was familiar with the land on which the defendant was living and that its rental value during 1902 and 1903 was from one dollar and fifty cents to two dollars per acre. He had known the place ever since it had been in cultivation, between fifteen and twenty years. On cross-examination he was asked “if the defendant had not claimed to own the land during the time he had known it?” and lie answered, “He claimed to- own the land in some way, bnt I do not know how.”

The defendant to sustain the issues on his part testified that there were about fifty or sixty acres of the land described in the petition inclosed; that he had lived on it since 1884; that when he first went on it, he bought the improvements from a man by the name of Pickett, who said it was vacant or Government land. There was a dwelling-house, stable and nine or ten acres fenced at that time; that was in the fall of 1884. He testified further-: “My understanding was that it was -vacant land; then I wrote to the Land Office and they told me that it had been entered by a man named Smith, and during the winter of 1884 a man by the. name of Cook said that he believed the land was owned by Stout and Poppleton; I wrote Stout to know if he owned it, and he said he did, and he would take one dollar and twenty-five cents per acre for it, if it was the kind of land I had described; I wrote him that I would give him the money if he would send me a general warranty deed, and he wrote that he would not give a better deed than he had. Since then I have been claiming by right of possession.”

On cross-examination he stated that he was an attorney and was admitted to the bar in 1896. Q. “You say you bought the improvements from Pickett when you went there?” A. “Yes, sir.” Q. “He told you it was Government land?” A. “Yes, sir.” Q. “When was that?” A. “In the spring of 1884.” Q. “Then when was it that you wrote to Ironton?” A. “In the winter.” Q. “And found out you were mistaken about it being wild land? ” A. “Yes, sir.” Q. “When was it you wrote to Stout and offered to buy the land? ” A. “Sometime in May, 1885.” Q. “Have you ever given this land in to the assessor?” A. “No, sir; I have offered to and they said they took it from the book.” Q. “Did you ever pay any taxes on it?” A. “Yes, sir, last fall. ’ ’ Q. “Did you ever pay any before that?” A. “No, sir; I could not, they were already paid.” Q. “After you received that letter refusing to make a warranty deed, yon say you claimed this land?” A. “Yes, sir.” Q. “Why?” A. “Because I believed I had the best title.” Q. “Did you say you thought it was Govern-' ment land?” A. “Yes, sir.” Q. “Then you tried to buy it?” A. “Yes, sir.” Q. “You'know Poppleton and Stout owned the land?” A. “Yes, sir.” Q. “You wanted their title?” A. “Yes, sir.” Q. “You had no other title?” A. “No, sir.” Q. “Have you bought any since?” A. “No, sir.” Q. “Did you ever examine the record to see who owned this land?” A. “No, sir; the record was burned up.” Q. ‘‘The John Smith deed was not burned up?” A. “No, sir; I got it from Ironton.” Q. “How long since the record was burned?” A. “I do not know.” Q. “Now, is it not a fact that you went out there and bought these improvements and then when you found out it was not Government land you made up your mind to keep it?” A. “No, sir; I thought I had the best title to it.” Q. “Why did you think so?” A. “Because they would not make me a deed to it. ” Q. “You never made an effort to get the land, from any body but Stout and Poppleton?” A. “Yes, sir; the Government.” Q. “Well, did you ever get a title from any body?” A. “No, sir; not by deed.” Q. “You went into the possession of this land before you got the letter, ‘Exhibit A?’ ” A. “Yes, sir; the fall before.” Q. “And that fall you cleared twenty acres?” A. “About that.” Q. “You did this before you got the letter from Stout?” A. “Yes, sir.” Q. “Is this the ■ letter? ” A. “Yes, sir.’ The letter is in the following words:

“Ft. Scott, Kansas, June 4,1883 or 1885.
“Mr. O. O. Jewell,
“Dear Sir: — In reply to yonrs May 24, onr plats indicate we own the northwest section of 29 and 8; now, have Mr. Poppleton consent to a sale at $1.25 per acre, if there is no pine timber on it; bnt the general warranty deed will settle the question as we will not give any better deed than we got. He is in the country and knows all about the tax law. We all believe that we have a perfect title, but do not care enough about selling to give a better deed than we got.
“Tours respectfully,
“W. H. Stout.”

Green Connors for the defendant testified that he lived in Shannon county about twelve miles from the defendant. The defendant had been living there about nineteen years. Q. ‘ ‘ Do you know what claim he has made to this land?” A. “Nothing only that he told me that he owned a place up there, which is known as the Jewell place.” This was in substance all of the evidence.

I. As the plea of the Statute of Limitations rests entirely upon the defendant’s own testimony, we must determine whether that evidence, accepting it as true, would as a matter of law have justified a jury in finding for the defendant. It is we think too plain for cavil or controversy that the possession of the defendant in its inception was not adverse. He bought the improvements on the land only and not the land itself, and says he was advised at that time that it was Government land or vacant. At that time he was not claiming any title or interest in the land and says he wrote to the Land Office and was advised by that office that ' the land had been duly entered by a man by the name of Smith. It is obvious he was not claiming adversely to the Government when he first went into possession, but on the contrary that he had bought the improvements with the intention of purchasing from the Government, and was holding his possession in subordination to the Government. Afterwards, in 1885, after he had purchased the improvements and had cleared twenty acres of the land with the understanding that it belonged to the Government, he learned that Stout and Poppleton were the owners and thereupon he wrote to Stout at Fort Scott, to purchase the land from them, and was advised by Stout that they did own the land, whereupon he offered them $1.25 per acre for a warranty deed to the same, but Stout objected to giving a warranty deed and thereupon nothing else was done by the defendant about the title. There is not. a word in his testimony or in his correspondence with Stout which tends to prove that he-was claiming the title to this land adversely to the title of Stout and Poppleton at that time. On the contrary, every legitimate inference to be drawn, from his testimony is that his possession in the beginning and at the time he was corresponding with Stout was in subservience to the true title and the presumption is that such possession continued friendly and subordinate until a change in the character of the holding was brought home to the true owner. [Hunnewell v. Burchett, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 440; Pitzman v. Boyce, 111 Mo. 392.]

It is true that defendant testified that he continued in possession, but we have looked in vain through his testimony to find any thing to indicate that the character of his possession, after his failure to obtain a warranty deed from Poppleton and Stout, had been changed into an adverse holding. Poppleton and Stout continued to pay all the taxes and there is no evidence that they were ever advised that defendant’s possession had been changed into one adverse to their title. There is no evidence in this record when the defendant’s possession became adverse to the plaintiff and its grantors. The "burden was upon the defendant to fix the time when he "began to hold adverse to the true title. It was so ruled in Hunnewell v. Adams, 153 Mo. 440. In Hunnewell v. Burchett, 152 Mo. 611, it was said by this court: “The law presumes that every possession is rightful and consistent with, not in opposition or ‘adverse’ to, title and ownership. A party, therefore, who relies upon ‘adverse possession’ in order to rebut this presumption of possession consistent with the title of the real owner,’ must prove his possession to be ‘adverse’ to the title set up; that is, he must show the actual knowledge of the real owner that he claims in opposition to, and defiance of, his title, or he must show such an occupancy and user, so open and notorious, and inconsistent with, as well as injurious to, the rights of the true owner, that the law ■ will authorize, from such facts, the presumption of such knowledge by the true owner. It is not the mere occupancy or possession which must be known to the true owner, to prejudice his rights, but its ‘adverse character.’ ” The defendant having written to Stout and offered to buy the land from Stout and Poppleton, and making no claim of adverse possession or assertion of any title adverse to theirs, the same continued possession of the premises of appellant was not notice to them of any ádverse claim on his part and while his possession of the part of the land which he actually occupied was open and continuous, under the circumstances it was not sufficient to overcome the presumption that he was still holding in subordination to their title. In Pitzman v. Boyce, 111 Mo. l. c. 392, it was said by this court: “The question first to be determined is whether the use was really adverse to the owner, or was it merely permissive in its character. If permissive in its inception, then such permissive character being stamped on the use at the outset will continue of the same nature, and no adverse user can arise until a distinct and positive assertion of a.right hostile to the owner, and brought home to him, can transform a subordinate and friendly holding into one of an opposite nature, and exclusive and independent in its character. [Budd v. Collins, 69 Mo. 129; Estes v. Long, 71 Mo. 605; Wilson v. Lerche, 90 Mo. 473; Wilkerson v. Thompson, 82 Mo. 317.]”

The case of Swope v. Ward, 185 Mo. 326, cited by the defendant, is unlike the case at bar in that this court said that the possession in that case “was adverse in its inception.” Neither is Boyce v. Railroad, 168 Mo. 593, opposed to the rule we have just stated. That case recognizes that the owner of the title should be notified of the adverse claim, but states that notice is unnecessary where the possession itself is necessary notice of the claim. The facts of this case as testified to by the defendant and his witnesses distinguish it from those cases in that here there was a friendly and subordinate possession in the inception, and the defendant himself in his offer to purchase the land from the true owners not only did not claim title to the land but evinced an anxiety to buy the title from them, and a total failure to show by any acts or words when his adverse possession, if any, began, or any change from a friendly possession in subordination to the true title to a hostile holding.

In our opinion the circuit court correctly held that upon the defendant’s own showing his possession was not an adverse, open and notorious possession for ten years next prior to the institution of this action, and that the jury were properly instructed to return a verdict for the plaintiff.

The judgment of the circuit court is affirmed.

Burgess, P. J., and Fox, J., concur.


source: Caselaw Access Project

author: BURGESS, P. J.

license: Public Domain

text:
    JOSHUA MANWARING, Appellant, v. MISSOURI LUMBER & MINING COMPANY, Appellant.
    Division Two,
    December 22, 1906.
    1. TAX DEED: Judgment Against Patentee: Burnt Record. Where the land, has been patented and conveyed by the patentee to another and that grantee’s deed recorded and the record books destroyed, before suit and a judgment for taxes against the patentee as the apparent record owner, a sheriff’s deed in pursuance to such judgment conveys no title to the purchaser at the sheriff’s sale. The real owner having put his deed of record and thereby done all the law requires of him, it is not his fault that the record is destroyed by fire or otherwise.
    2. -: -: Laches. Where the land was patented prior to 1859, and in that year conveyed by the patentee to defendant’s grantor and the deed recorded, and the record was destroyed by fire in 1870, and re-recorded in 1894', and suit was brought against the patentee in 1881 for taxes for 1878, and judgment obtained and the land sold thereunder to plaintiff who has since, up to the time of bringing suit in 1902, paid taxes thereon, defendant is not estopped by laches from setting up his title as a defense in a suit by plaintiff to quiet the title, the land being wild and unoccupied by any one.
    3. -: Refunding Taxes Paid: Act of 1903: Not Available to Plaintiff. The act of 1903, providing that all taxes paid by defendant are to be refunded and made a lien on the land, is not available to plaintiff. By the express terms of the statute the right to have taxes paid refunded, is confined to defendant.
    4. -: -: -: Passed Subsequent to Suit. An acfi passed subsequently to the institution of a suit cannot affect the rights or interests of parties thereto.
    5. -: -: -: Retrospective. The act of 1903 in reference to the refunding of taxes to defendant by plaintiff in a suit to quiet title or ejectment, is not retrospective; it creates property rights which did not theretofore exist.
    Appeal from Shannon Circuit Court.— Ron. W. N. Evans, Judge.
    Affirmed in part and reversed in part.

      James Orchard and O. L. Hay don for plaintiff-appellant.
    (1) The tax deeds of May 5,1881, based on judgment for taxes against patentees and record owners when said taxes were assessed, is sufficient to vest in plaintiff the legal title as against defendant who claims under deeds the record of which was burned December, 1870, it not appearing that either the collector or purchaser at the tax sale had any notice of said deeds. Allen v. Eay, 96 Mo. 547; Payne v. Lott, 90 Mo. 676; Evans v. Eobberson, 92 Mo. 192; Yance v. Corrigan, 74 Mo. 94. (2) Whether the sheriff’s deed passed the legal title or not, defendant by his laches is estopped from setting up his title at this late day. Hequemborg v. Edwards, 155 Mo. 522; Bales v. Berry, 51 Mo. 449; Austin v. Loring, 63 Mo. 22; Bispham’s Principles of Equity (6 Ed.), secs. 39, 284; Tiedeman on Eeal Property (1883 Ed.), p. 544; Morrison v. Turnbaugh, 192 Mo. 447. (3) The court was correct in allowing taxes that had been paid out by the plaintiff and his grantors on the lands described in plaintiff’s petition, for the reason that it was a lien oni the land and paid-by the purchasers in good faith, believing they had title to the land. (4) The sale under a judgment for bach taxes under the revenue law of 1877 to enforce the tax lien is a judicial sale. State ex rel. v. Sargent, 12 Mo. App.223. Where an action is wholly or part m rem, a sale under judgment or decree therein is a judicial sale. • Tiedeman on Sales, sec. 256. A suit to foreclose a tax lien is an action in rem after the owners are brought in by process. The judgment is one in rem, the execution goes against the property, and the sheriff sells the property and not the interest of the particular party in it. Allen v. McCabe, 93 Mo. 139; Hilton v. Smith, 134 Mo. 499; Welsh ear v. Kelley, 69 Mo. 353. A sale by a public administrator, in executing an order of the probate court, is a judicial sale, and the general rule is that the purchaser at such sale buys at his peril. Estes v. Alexander, 90 Mo. 458. (5) There being no statutory law as in the ease at bar,- then equity says what shall be done, and that covers all such cases as thq one we now have before ns. The rule is laid down in Story about as follows: That if any case should happen which is not regulated by such express or written law it should have for law a natural principle of equity which is the universal law extending to everything. Story’s Equity Jurisprudence (12 Ed.), sec. 4. (6) Taxation is supposed to be for the benefit of the person taxed; that for raising a general revenue is imposed primarily for his protection as a member of society, both in his person and his property in general, and hence the amount assessed against him to be charged upon his property, etc. Neenan v. Smith, 50 Mo. 529. Everyone must take notice that his property is assessed each and every year and his taxes become payable every year, and it is his duty to pay them promptly. Unpaid taxes constitute a lien on the land, which is prior and paramount to all other liens. Fleckenstein v. Baxter, 114 Mo. 496; 'McLean v. Martin, 45 Mo. 393; "Wilchinsky v. C'avender, 72 Mo. 192; Cunningham v. Anderson, 107 Mo. 377; Newell on Ejectment, sec. 48. The rule is laid down that persons who have paid taxes are entitled to be reimbursed. Lington v. Copeland (S. C.), 10 S. E. 616; Schafer v. Causey, 76 Mo. 365.

      John C. Brown and Orr & Luster for defendant-appellant.
    (1) A deed once recorded is good against a deed subsequently made and recorded from the grantor, even if the record of the first deed was destroyed before the making and recording of the second. Crane v. Dameron, 98 Mo. 570; Greer v. Mo. Lumber & Mining Co., 134 Mo. 92; Wier v. Lumber Company, 85 S. W. 342. (2) A sheriff’s deed based on a judgment for taxes does not pass the title of one not a party defendant in the tax suit, who claims under a deed recorded prior to the commencement of the tax suit, even if the record of said deed was destroyed before the institution of the tax proceedings. Crane v. Dameron, 98 Mo. 570; Greer v. Mo. Lumber & Mining Company, 135 Mo. 92; Wier v. Lumber Co., 85 S. W. 342. (3) That part of the judgment declaring a lien in favor of plaintiff for taxes paid is erroneous and should be reversed. The act of 1903, having been passed and approved since the institution of this suit, cannot affect the rights or interests of the parties thereto. Burkham v. Manewal, 94 5. W. 520; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376. (4) Prior to the passage of the act of March 6, 1903, no recovery could be had for taxes paid by one under circumstances similar to the case at bar. Burk-ham v. Manewal, 94 S. W. 520; Rowe v. Current River Land & Cattle Co., 99 Mo. App. 158; Carter v. Phillips, 49 Mo. App. .319'; Petring v. Current River Laud & Cattle Company, 85 S. W. 933. (5) Said act by its terms and provisions does not apply to the facts in this case under the pleadings and the plaintiff is not entitled to a lien for the taxes paid by him. The statute is in derogation of the common law and must be strictly construed. Laws 1903, p. 254; Petring v. Current River Land & Cattle Company, 85 S. W. 933; Carriage Co. v. Reid, 99 Mo. App. 415; Judson v. Smith, 104 Mo. 61; Thompson v. Union Elevator Co., 77 Mo. 520. (6) But the language of the act points to the future. It should be construed as prospective in its operation. By its terms it does not and under the Constitution it cannot act restrospectively so as to entitle the plaintiff herein to recover taxes paid prior to the passage of this act. Art. 2, sec. 15, Constitution;Petring v. Current River Land & Cattle Company, 85 S. W. 933; Gladney v. Sydnor, 172 Mo. 319; Leete v. State Bank, 115 Mo. 184; Reed v. Swan, 133 Mo. 101,; State ex rel. v. Ferguson, 62 Mo. 77; State ex rel. v. Green, 78 Mo. 188; State ex rel. v. Thompson, 41 Mo. 25; Singer Mfg. Co. v. Schull, 74 Mo. App. 486. (7) Said act cannot have the effect of giving a right to recover taxes which have been paid more than five years prior to the commencement of this suit. Sec. 4273, R. S. 1899.
   BURGESS, P. J.

This cause is before this court upon cross appeals.

On the 2nd day of August, 1902, plaintiff instituted this suit under section 650, Revised Statutes 1899, to determine interests and quiet the title to several hundred acres of land described in the petition, of which he claimed to be the owner and to which he Claimed to have title in fee simple, and alleging that the defendant claims some title, estate or interest in and to all of said lands adverse to the title of the petitioner.

On Septemebr 8, 1902, defendant filed its answer to plaintiff’s petition in which it denied that plaintiff had any title or interest in said lands, and alleging title in defendant company.

On March 6, 1903, the Legislature passed an act, pp. 254-255, Laws 1903, which took effect June-21,1903, “Relating to the setting Aside of Tax Deeds,” which provides:

“That no suit, or action, in any of the courts of this State, either at law or in equity, shall hereafter be maintained by any person or corporations, against any other person or corporation, for the determination of the title to, or for the recovery of the possession of, any lands, which shall have been sold for taxes, or any interest in ány such lands, or for the setting aside or cancellation of any tax-deed or sale of land for taxes, alleged to have been void, voidable or defective, unless such person or corporation so seeking to recover such lands, or some interest therein, or the setting asidé of such tax-deed or tax-sale, shall, in his petition offer to refund to the defendant therein, or to such other person or corporation, from whom and against whom such recovery is sought, in such action, all taxes paid by such defendant, or other persons, and his grantors, remote or immediate, or by those under whom he claims, together with interest thereon from the date of payment of such taxes to the date of the judgment in such action. No actual tender shall be required to be made by such plaintiff, or other person seeking such recovery or cancellation of such deed, but it shall be deemed sufficient if an offer to pay the same, as soon as the amount thereof shall be ascertained, shall be made and set out in such'petition. All courts before which any such action may be brought or maintained, shall, if the judgment in such action be adverse to the defendant, or dedefendants, therein, and the recovery of such land, or any interest therein, be adjudged or decreed, find and adjudge by its decree or judgment the amount of money due to the defendant, or to other persons, on account of taxes or interest thereon paid as aforesaid, by defendant, or his grantors as aforesaid; and' all such courts may, if such relief be prayed for in the answer, or the other pleading of the defendant, or other persons entitled to reimbursement, adjudge and decree that the amount so found by the court, or a jury, shall be and constitute a lien upon the lands recovered, or in controversy. ’ ’

Thereafter on September 16, 1903, plaintiff filed an amended petition, containing a second count, in which for the first time he claims that his title is based upon certain sheriff’s deeds for taxes; that he and his grantor have paid a large amount of taxes on said lands for the year 1879 and up to and including the year 1898. He asks in this second count to be reimbursed for all taxes paid by him and that the amount so paid be declared a lien on the land, provided the court should find the title to the land to be in the defendant.

Defendant filed an answer to plaintiff’s amended petition, denying that plaintiff had any interest in or title to the land, and alleging the title to be in defendant company.

The trial resulted in a finding and judgment that the defendant was the legal owner of the land. The court also found that the plaintiff’s claim of title was based upon sheriff’s deeds for taxes and that by virtue thereof he had paid- and extinguished taxes upon the land, which with interest thereon amounted to $438.16, and declared the same to be a lien upon said land.

In due time defendant filed motions for new trial and in arrest, and plaintiff filed his motion for a new trial, all of which were overruled, and exceptions timely saved by the respective parties.

Both parties appeal.

Plaintiff showed a derivative title from the United States Government, which included tax deeds for all the land in question to Logan D. Dameron of date May 5, 1881. These deeds were executed by the sheriff of Shannon county in pursuance of sales made by the sheriff of said county under judgments rendered against the apparent record owners of said land for delinquent taxes, upon which said judgments executions had been duly issued. These deeds were recorded in the recorder’s office of said county on May 6,1881.

Defendant to sustain the issues on its part introduced the following evidence.

Defendant read original deed from Wm. Geninn to Cosmore G. Bruce, conveying lots 2 and 3 of the northwest quarter and lots 2 and 3 of the northeast quarter of section 3, township 29, range 3, dated July 5,1859, recorded May 8, 3860, in Book O at page 283. of the Deed Records of Shannon county, Missouri, and rerecorded on March 20, 1894, in Book 31 at page 293 of {he Deed Records of Shannon county, Missouri.

Defendant read original deed from Jacob Armor to Oosmore Gr. Bruce conveying lots 4 and 5 of the northeast quarter and lots 4 and 5 of the northwest quarter of section 3, township 29', range 2, dated July 5, 1859, recorded May 8, 1860, in Book O at page 282 of the Deed Records of Shannon county, Missouri, and re-recorded March 20, 1894, in Book 31 at page 295 of the Deed Records of Shannon county, Missouri.

Defendant then read a quit-claim deed from Emily B. Smith and husband and Chas. W. Bruce and wife to John C. Brown, dated May 8, 1895, recorded May 20, 1895, in Book 31 at page 308, conveying all the lands purchased by Cosmore Gr. Bruce and described in the foregoing deeds.

Next a warranty deed from William Ritchie to Henry B. Reeves conveying the south half of the southwest quarter and the south half of the southeast quarter of section 11, township 29, range 2 west, dated March 29, 1860, recorded January 6, 1870, in Book Gr at page 133, re-recorded June 16, 1894, in Book 31 at page 395.

Defendant read a warranty deed from Henry B. Reeves and wife to Alonzo K. Reynolds, dated June 9, 1860, recorded January 6, 1870, in Book Gr at page 134, and re-recorded on June 16,1894 , in Book 31 at page 397, conveying the land last above described.

The record of this deed was destroyed by fire on December 31,1870.

Defendant read a quitclaim deed from Chas. S. Reynolds and wife, heirs of Alonzo K. Rynolds, to John C. Brown, dated May 2, 1894, recorded June 16, 1894, in Book 29 at page 117, conveying the land last above described.

■ Defendant next read a warranty deed from Barnett Orrick to A. L. Wbitely, conveying the north half of the southwest quarter and the west half of the southeast quarter and, lot 1 of the northwest quarter and lot 1 of the northeast quarter of section 3, township 29 north, of range 2 west, dated May 9, 1859, recorded May 14,1860, in Book C at page 289 and re-recorded March 16, 1894, in Book 31 at page 284.

■Defendant then read a warranty deed from A. L. Whifcely to George W. Manning, conveying the land last above described, dated June 9, 1859, recorded May 15, 1860, in Book C at page 293, and re-recorded March 16, 1894, in Book 31 at page 285.

Defendant then read a warranty deed from Geo. W. Manning to Michael J. Kine, conveying the land last above described, dated January 11, 1867, recorded January 31, 1870, in Book G at page 189, and rerecorded March 16, 1894, in Book 31 at page 289.

At the time of the offering in evidence of each one of said deeds by defendant, plaintiff objected to the inti’oduction of the deed for the reason that the plaintiff’s claim of title rested upon a sheriff’s sale under an execution for back taxes for the year 1878, and the deed in evidence did not show it to have been recorded before the sale for back taxes as shown by plaintiff’s deed, which objection was overruled by the court, to which ruling the plaintiff excepted at the time.

Defendant offered certified copy of the will of Michael J. Kine to his wife, Bridget M. Kine, bequeathing to her all his property both real and personal, dated Axxgust’ 30, 1873, recorded June 9, 1879, in Will Book A at page 157.

Defendant read a quitclaim deed from Bridget M. Kine to Missouri Lumber & Mining Company, dated June 7, 1899, recorded June 26, 1899, conveying all of tract 4.

Defendant, by agreement, read the affidavits of Emil B. Smith and Perry Lewis, the former showing that prior to her marriage with Charles B. Smith she was the widow of Cosmore G. Bruce, who resided in Lake county, Ohio, in the year 1859', and that Smith died in the year 1881, and left one son Charles W. Bruce as his only child and heir. The affidavit of Perry Lewis was to the effect that he knew personally and well Alonzo R. Reynolds and his brother Charles S. Reynolds, late of Erie county, Pennsylvania, during their lifetime. That said Alonzo died about the year 1894, leaving no mother, father, sister or children surviving him. That he did leave his brother Charles S. surviving him, but that he also died about the year 1896.

Defendant then read in evidence a quitclaim deed from John C. Brown to the Missouri Lumber and Mining Company, dated June 3, 1899, recorded June 26, 1899, in Book 36, page 366, conveying the land in question in this suit.

The records of all of said deeds which were recorded prior to the 31st day of December, 1870, were destroyed by fire at that date.

Plaintiff insists that the tax deeds of May 5, 1881, under which he claims title, being based as they were upon judgments of the circuit court "of Shannon county for taxes assessed against the patentees of the land, were sufficient-to vest in plaintiff the legal title, as against defendant who claims under deeds, the record of which was burned December 31, 1870, it not appearing that either the collector or purchaser at the tax sale had any notice of said deeds. In support of this contention plaintiff relies upon Vance v. Corrigan, 78 Mo. 94; Payne v. Lott, 90 Mo. 676; Evans v. Robberson, 92 Mo. 192; Allen v. Ray, 96 Mo. 547, which hold that suits for taxes against land must be brought against the record owner of the land, and that every person not having actual notice as to who is the real owner of lands other than as indicated by the deed records has the right to rely' upon the records provided by law to be kept for the purpose of showing such ownership, and that a purchaser of such lands at a sale thereof without notice under a judgment against the record owner for back taxes will be protected in his title even as against the true owner. But this rule does not apply to a purchaser under a judgment in a back tax suit brought against the apparent owner of land where the deed from such apparent owner has been recorded before suit brought for the taxes, although the deed book containing the record of the deed had been consumed by fire before the bringing of the suit. In such circumstances the purchaser at the tax sale is not an innocent purchaser within the meaning of the law, because the owner does all the law requires of, him in placing his deed upon record, and it is no fault of his that the record of the deed is destroyed.

Crane v. Dameron, 98 Mo. 567, was an action of ejectment for a tract of land in this same county which was entered by Cyrus K. Brown in 1858, and on the 10th day of August, 1859, Brown, by warranty deed, conveyed the land to plaintiff, whose deed was on the fifth day of March, 1860, filed for record in the office of the recorder of said county, and, on the eighth of March, 1860, the same was recorded among the land records of said county, in Deed Book 0, at pages 114 and 115. On the thirty-first of December, 1871, Deed Book C was destroyed by fire. The taxes on the land for the years 1871 to 1878, inclusive, were assessed to Brown. A suit for delinquent taxes for these years was instituted by the collector of said county against this tract of land, to which Brown was made the party defendant and on the sixth day of November, 1880, judgment was rendered for the taxes, and on the fifth day of May, 1881, the land was sold under this judgment. The defendant. Dameron became the purchaser, received his tax deed therefor, and put the same on record in said county. The court, before whom the case was tried without a jury, found for the defendant, and plaintiff appealed. It was held that a purchaser under a judgment in a hack tax suit brought against the apparent owner of land will not be protected against the holder of a recorded deed from such apparent owner although the deed book containing the record of the deed had been destroyed by fire before the bringing of the suit; that the destruction of the deed record book containing the record of the deed, did not in contemplation of law destroy the deed, nor the effect of its record.

Geer v. Lumber and Mining Co., 134 Mo. 85, was an action of ejectment for certain lands in this same county. The plaintiff claimed title under deed made by the sheriff of said county in 1881, under judgments for taxes. Defendants claimed title under deeds from the patentee of the land to one Auld. These deeds were dated in the sixties, and were recorded in Shannon county in 1870. After their record, the record of deeds in which they were recorded was destroyed by fire, but the deeds were not again recorded, until after the tax sales under which plaintiff claimed. It was held that under Revised Statutes 1889, section 2419, providing that deeds duly acknowledged, certified, and recorded, “shall from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed in law and equity to purchase with notice,” the recording of a deed is notice, although the records were subsequently destroyed; and the purchaser at a tax sale under a judgment against the apparent owner of land will not be protected against the real owner, the record of whose deed was destroyed.

Weir v. Lumber Co., 186 Mo. 388, was an action under the statute to ascertain the rig'hts of the respective parties to a tract of this sarue class of lands, also in Shannon county, and the same rule was announced as in Crane v. Dameron, supra, and Geer v. Lumber Co-., supra, and those cases followed.

If these adjudications are sound law, as we think they are, it necessarily follows that defendant was the legal owner of the lands in question at the time of the bringing of this suit, and that the court was correct in so ruling.

There was no laches upon the part of the defendant in this case. [Weir v. Lumber Co., supra.]

Another contention upon the part of plaintiff is that even though his title be held invalid he is entitled under the act of 1903 to recover all the taxes paid by him and his grantors at' and subsequent to the tax sales. Upon the other hand, defendant’s position is that the act of 1903 only applies in case the taxes are paid subsequently to the taking effect of this act. It is not claimed by plaintiff that prior to this act recovery could be had for taxes paid by a person under circumstances like the case at bar.

There are several reasons why in our opinion plaintiff cannot invoke the aid of the act in this instance. .In the first place, the act confers no such rig’ht upon the plaintiff, who sues for the determination of the title to, or for the possession of land, but by express terms provides that all taxes paid by the defendant or other persons, and his gTantors, remote or immediate, or by those under whom he claims, together with interest thereon from the date of payment of such taxes to the date of the judgment in such suit, may, in the event the judgment be adverse to the defendant, constitute a lien upon the lands recovered, or in controversy, but confers no such right upon a plaintiff. Besides, the act makes it a condition precedent to the maintenance of such suit that the plaintiff therein shall, in his petition, offer to refund to the defendant therein,' or to such other person or corporation from whom and against whom snch recovery is sought, all taxes paid by such defendant or other person. But notwithstanding these plain and explicit provisions of the act, in this case defendant seeks to avail himself of the terms of the act just as he might do if he were the defendant in the case, and this, too, in the face of the provisions of the act to the contrary. The act is in derogation of the common law, and should be strictly construed, but it would require a very liberal and unwarranted construction to give it the construction sought to' be placed upon it by plaintiff.

Second. The act having been passed subsequently to the institution' of this suit, cannot affect the rights or the interest of the parties thereto. As a general rule the plaintiff must recover, if at all, upon a cause of action existing at the commencement of the suit. [Barber Asphalt Paving Company v. Ridge, 169 Mo. 376.] Not only this, but to permit'the plaintiff to invoke the provisions of the act in his behalf in this case would be to give it a retrospective effect, which cannot be done in the absence of some provision in the act indicative of the intent of the Legislature that it should have such effect. [Haarstick v. Gabriel, 200 Mo. 237.] -

It creates rights which did not exist before its passage, and expressly provides that hereafter, that is, after this act takes effect, no suit shall be maintained, etc., clearly indicating that the act was intended to be prospective rather than retrospective. The act was before the St. Louis Court of Appeals for construction in the case of Petring v. Current River Land & Cattle Company, 111 Mo. App. 373, ’and it was held that it was prospective, and applied to future tax sales only. Goode, J., in speaking for the court in that case, said:

“The sale itself occurred more than twenty-four years before the act took effect and the. taxes were all paid prior to its taking effect. The question in the case, therefore, is whether the act embraces those past transactions and the reimbursement of the defendant for its outlay may be made a condition on which the plaintiffs will be afforded the redress they pray. Our Constitution forbids the enactment by the General Assembly of laws retrospective in their operation. [Const., art. 2, sec. 15.] If the proposition involved was one of constitutional law, our jurisdiction would not include it; but we regard it as one of interpretation —the meaning of the statute, instead of its constitutionality. It is an established rule for the interpretation of legislative acts-that they shall be construed as prospective in intention and application and not retrospective, unless their language calls for retroactive operation. [Thompson v. Smith, 8 Mo. 723; State ex rel. Parker v. Thompson, 41 Mo. 25; State ex rel. v. Hays, 52 Mo. 578; State ex rel. v. Ferguson, 62 Mo. 77; Leete v. State Bank, 115 Mo. 184.] The language of this act 'looks to the future. It says no suit or action shall hereafter be maintained for the determination of title to, or for the recovery of possession of, any lands which shall have been sold for taxes, etc. The language imports future sales, and affords no room for a construction which would extend the remedy provided by the act so as to cover prior transactions, even if such construction was favored; but it is discountenanced. The doctrine that statutes will be held to operate prospectively when their language permits that ruling, has been applied to just such cases as this one. [Auditor General v. Supervisors, 76 Mich. 295; Inv. Co. v. Thayer, 7 S. D. 72; Moody v. Hoskins, 64 Miss. 468.] The only theory on which it can be contended that the act in question ought to have a retrospective operation is that it relates ex-elusivelv to the remedy and not to the right. Acts changing remedies in any way that do not destroy or impair vested rights, are excluded from the rule invalidating retrospective laws, even when they are intended to retroact. Bnt remedial laws are, not allowed a retrospective operation when they create an additional disability or new defense, or otherwise impair vested rights. [Missouri eases cited above; Couch v. Jeffries, 4 Burr. 2460; Bash v. YanKleeck, 7 Johns. 477; Wade on Retrospective Laws, see. 198, et seq.] The courts have announced widely divergent opinions as to when statutes changing remedies and enacted to operate retrospectively so far impair vested rights as to be unconstitutional and invalid. We have no occasion to look into the authorities on the subject. The language of the statute in question calls for future operation only, and should not be interpreted to retroact merely because that interpretation would be equitable and enforce an obligation morally incumbent on the plaintiffs to repay the taxes on their land which the defendant had discharged. Such an interpretation would disregard the language of the act.”

Our conclusion is that the judgment in so far as it is in favor of defendant should he affirmed, but in so far as it is in favor of plaintiff for taxes paid upon the lands and declaring the same to be a lien thereon, it should be reversed. It is so ordered.

All concur.