Opinion
No. 38473.
October 4, 1943. Rehearing Denied, November 1, 1943.
1. TAXATION: Jones-Munger Act: Redemption Rights Of Subsequent Purchaser. A subsequent purchaser of land sold for taxes under the Jones-Munger Act has the right to redeem.
2. DEEDS: Acknowledgments: Taxation: Unrecorded Power of Attorney: Valid Transfer of Redemption Rights. The fact that the power of attorney under the authority of which the land was conveyed had not been recorded did not prevent the deed from being valid between the parties, and the grantee had the right to redeem the land from a tax sale under the Jones-Munger Act.
3. MANDAMUS: Taxation: Clear Legal Right To Tax Deed Not Shown. Since the relator has failed to show a clear legal right to have a Jones-Munger tax deed issued in his favor, the writ of mandamus was properly denied.
Appeal from Wayne Circuit Court. — Hon. Everett E. Eversole. Judge.
AFFIRMED.
J. Grant Frye and Gerald B. Rowan for appellant.
(1) The appellant showed every fact necessary to entitle him to a collector's deed to the land in controversy. The respondent failed to show any facts which would warrant his refusal to deliver such a deed to appellant. The deed of October 25, 1940, which purported to be from Hal Bennett, as attorney in fact for The Johns Hopkins University, to C.O. Barks, and the deed of November 6, 1940, from C.O. Barks to Boss H.P. Bennett would not be sufficient to convey an interest to Boss H.P. Bennett which would permit him to redeem unless it was shown that Hal Bennett was in fact empowered to act as attorney in fact for The Johns Hopkins University and the purported power of attorney from The Johns Hopkins University which was admitted in evidence for the purpose of proving this fact should not have been admitted for the reason that it was not properly identified as having been executed by anyone who had authority to execute it on behalf of The Johns Hopkins University, and was not acknowledged. Secs. 3433, 3435, R.S. 1939; Scotland County Natl. Bank v. Hohn, 125 S.W. 539, 146 Mo. App. 699; Miller v. Corpman, 257 S.W. 428, 301 Mo. 589. (2) The purported power of attorney admitted in evidence was not admissible to prove the authority of Hal Bennett to execute the deed of October 25, 1940 as the agent for The Johns Hopkins University, because the purported power of attorney was not recorded until December 6, 1940, or at a date later than the date of the deed. Sec. 3433, R.S. 1939. (3) The competent and admissible evidence offered by respondent fails to show that Hal Bennett was authorized by The Johns Hopkins University, the admitted owner of the fee, to convey this land; and hence, Boss H.P. Bennett, who claims, under a purported conveyance by Hal Bennett for The Johns Hopkins University, was not entitled on November 7, 1940 to redeem the tax certificates purchased by appellant as he attempted to do. Authorities cited under (1). (4) The purported power of attorney, being incompetent and inadmissible in evidence, respondent failed to show any reason why he should not have executed a collector's deed to appellant, and the alternative writ of mandamus ought to have been made permanent. Sec. 11149, R.S. 1939.
Roy W. McGhee and Robert C. Hyde for respondent.
(1) Appellant was not entitled to a deed if there had been a redemption as contemplated by law. Sec. 11149, R.S. 1939. (2) There had been a redemption as contemplated by law when "Boss" H.P. Bennett, claiming an interest in the land under a quitclaim deed, describing the land and properly acknowledged, secured certificates of redemption upon the payment of a proper sum of money. Sec. 11145, R.S. 1939. (3) The deed to "Boss" H.P. Bennett which was properly acknowledged, was admissible in evidence. Sec. 3435, R.S. 1939. (4) "Boss" H.P. Bennett made a prima facie case of title in himself showing a quitclaim deed describing the land and properly acknowledged without further proof of its execution and delivery. Keener v. Williams, 271 S.W. 489. (5) A power of attorney shall be acknowledged and proved and certified and recorded as other instruments in writing, conveying or affecting real estate, are required to be acknowledged or proved and certified and recorded. Sec. 3433, R.S. 1939. (6) A deed shall be acknowledged and proved and certified and recorded. Sec. 3426, R.S. 1939. (7) A deed is valid between the parties although not acknowledged or recorded and the purpose of acknowledgment is to protect the creditor and purchaser. Sec. 3428, R.S. 1939; Elsea v. Smith, 202 S.W. 1071. (8) The appellant, as a certificate holder under the Jones-Munger Law, received no title to the land in question, he was an owner of an inchoate title which could become complete only if there was no redemption in time. State ex rel. St. Louis v. Baumann, 153 S.W.2d 31; St. Louis v. Koch, 156 S.W.2d 1; State ex rel. United States Mtg. Trust Co. v. Godfrey, 56 N.E. 482. (9) "Owner" means the person having either legal or equitable title or an interest in the property. 42 Am. Jur., p. 214, sec. 37; 2 A.L.R. 779; 95 A.L.R. 1086. (10) "Interest" in land is not synonomous with title and a purchaser holding under a deed, defectively executed, has an absolute and insurable interest in the property although he has no legal title. 42 Am. Jur., p. 214, sec. 36; Hough v. City Fire Ins. Co., 29 Conn. 10; 50 C.J., p. 783, sec. 59. (11) "Boss" H.P. Bennett was entitled to redeem the land be cause he was the owner and a person having an interest in the land even though he had no legal title. Spillman Land Securities Co. v. Standard Inv. Co., 238 S.W. 418; Darrington v. Rose, 90 So. 632; Henze v. Mitchell, 140 N.W. 149; 2 A.L.R. 792; 95 A.L.R. 1094; 26 R.C.L., sec. 387, p. 430; Wyatt v. Beard, 15 S.W.2d 990; Hayes v. Fridge, 101 So. 270.
This is a mandamus action to compel the respondent, the collector of revenue of Wayne County, Missouri, to execute a deed to certain lands in Wayne County under the provisions of the Jones-Munger Act of 1933, sections 11117, et seq., R.S. Mo. 1939. The trial court denied the writ for the reason that it had been redeemed by one Boss H.P. Bennett.
The evidence shows that on November 7, 1939, the appellant bought the tax certificates for the delinquent taxes due on the land in question for the years 1934, 1935, 1936, 1937, and 1938. At the time the tax certificates were bought by the appellant, the title to the land was in Johns Hopkins University and it was conceded at the trial that no redemption was made by it. However, a quitclaim deed, dated October 25, 1940, was introduced in evidence executed by Hal Bennett, as attorney in fact for Johns Hopkins University, conveying the land to C.O. Barks, who, in turn, conveyed the land on November 6, 1940, to Boss H.P. Bennett. He paid the taxes, interest, and penalties due on November 7, 1941, and respondent issued to him redemption certificates. A power of attorney was executed by Johns Hopkins University dated June 6, 1940, giving authority to Hal Bennett to execute a deed in its behalf. This power of attorney was filed in the recorder of deeds' office on December 6, 1940, but it was not acknowledged. It is conceded that the appellant had complied with all statutory requirements entitling him to a collector's deed, and that Boss H.P. Bennett had also complied with all statutory requirements entitling him to redeem the land if he had a right to redeem.
Or to put it another way, does the fact that there was no acknowledgment of the power of attorney deprive Boss H.P. Bennett from the right of redemption?
Section 11145, R.S. Mo. 1939, states who may redeem in the following language: "The owner or occupant of any land or lot sold for taxes, or any other persons having an interest therein, may redeem the same at any time during the two years next ensuing, in the following manner: . . ." (Italics ours.)
The respondent contends that Boss H.P. Bennett was a person having an interest in the land under the above facts and, therefore, was entitled to redeem. In other words, it was not necessary for him to be vested with the legal title to entitle him to redeem. We think there can be no doubt of this assertion. This section says that the owner, occupant, "or any other persons having an interest therein" may redeem.
Does the fact that the power of attorney was not acknowledged prevent him from having an interest in the land?
Section 3433, R.S. Mo. 1939, provides the power of attorney, in reference to conveying real estate, "shall be acknowledged or proved, and certified and recorded, as other instruments in writing conveying or affecting real estate are required to be acknowledged or proved and certified and recorded." (Italics ours.)
The question arises as to the requirements of "other instruments in writing conveying . . . real estate" in reference to acknowledgments. Section 3416, R.S. Mo. 1939, set forth the contents of the acknowledgment of a deed conveying real estate. Since the power of attorney in question had no acknowledgment, it is not necessary to state the requirements of this section. Section 3426, R.S. Mo. 1939, requires that all instruments conveying real estate that are properly acknowledged shall be recorded in the office of the recorder of deeds in the county where the real estate is situated, while the next section (3427) provides that "Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the recorder for record, impart notice to all persons . . ."
There is nothing in the above section that declares a deed not properly acknowledged and recorded shall be void; but, on the other hand, if the requirements of these sections are not met, there is no notice to subsequent purchasers and mortgagees. In fact, a deed conveying real estate that is not acknowledged or recorded is valid between the parties. Section 3428, R.S. Mo. 1939, reads, "No such [823] instrument in writing shall be valid, except between the parties thereto, . . . until the same shall be deposited with the recorder for record."
"The purpose of the section [3426] being to protect creditors and purchasers, the title vests in the grantee without an acknowledgment as completely as if the formalities of the statute had been complied with." Elsea v. Smith, 273 Mo. 396, 202 S.W. 1071, l.c. 1074.
If a deed without an acknowledgment vests title in the grantee, and, therefore, is valid as between the parties thereto, it necessarily follows that under Section 3433, supra, a power of attorney to convey real estate that is not acknowledged is valid between the grantor and the grantee.
Under the facts of this case, the conveyance of the land in question is valid between Johns Hopkins University and its grantee, C.O. Barks. It follows that C.O. Barks' grantee, Boss H.P. Bennett, had an interest in this land, and, therefore, was entitled to redeem under Section 11145, supra.
To sustain his writ of mandamus, appellant relies upon our case of Miller v. Corpman, 301 Mo. 589, 257 S.W. 428. That case was a suit to quiet title and while there was a deed purporting to have been executed under a power of attorney, yet the record failed to show any instrument authorizing the attorney in fact to convey the land in question. We held that since there was no power of attorney, the deed did not convey any interest in the land. The record in this case shows there was a power of attorney, though it lacked an acknowledgment. That case is not in point.
Before the appellant would be entitled to a writ of mandamus, he must show a clear legal right to compel performance of the particular act. The writ will not lie to establish a legal right, but its office is to enforce one which has already been established. The legal right of appellant "or relator to the performance of the particular act of which performance is sought to be compelled must be clear and complete." 38 C.J. 582, sec. 56.
Appellant has failed to sustain a legal right to the execution of the deed in question by respondent, and it follows that the judgment of the trial court should be affirmed. All concur.