
    Hill v. Sherwood et al., Appellants.
    Tax Deed, Validity of : payment of taxes before suit : collateral attack : ejectment. In an action of 'ejectment against the former owner, by a purchaser at a tax sale under a judgment of a circuit court rendered in a suit for back taxes, the sheriff’s deed cannot be defeated by showing that the taxes sued for had been paid prior to the institution of the suit and the returning of the land as delinquent, the proceedings being otherwise regular.
    
      Appeal from Newton Circuit Court. — Hon. M. Gr. McGtKegob, Judge.
    Affirmed.
    
      Joseph Cravens for appellants.
    “ If the tax be paid before the sale, the lien of the state is discharged, and the right to sell no longer exists. When the owner has performed all his duties to the government, no court would sanction, under any circumstances, the forfeiture of his rights of property.” Black. Tax Titles, 484. “ Payment of the tax by the owner, or by any one entitled to make it, is an absolute defeat and termination of any statutory power to sell.” Cooley on Tax. 322. A sale by the collector is of no validity if the taxes were in fact paid. State ex'rel. v. Sargeant, 12 Mo. App. 228; Burroughs on Taxation, 355.
    
      Oeorge Hubbert for respondent.
    The respondent (a stranger to the record, without knowledge or constructive notice that any ground of defense existed in behalf of the defendant in the action for taxes, he having purchased the land under the judgment and execution of a court of general jurisdiction based upon due service by publication) cannot be denied the protection guaranteed by sound rules of law, based on good faith and public policy, to all purchasers at judicial sales not absolutely void. The authorities cited by appellants apply only to statutory proceedings, and not to judgments of courts of general jurisdiction.
   Beaoe, J.

This is an action of ejectment to recover possession of a certain tract of land in Newton county. The case was tried by the court without a jury on an agreed statement of facts. The single question presented on the record is, whether a sheriff’s deed in regular form to a purchaser at a tax sale, under an execution on a judgment rendered in an action in the circuit court on a back-tax bill in favor of the state at the relation of the collector, for the taxes of the year 1877, properly levied and assessed, extended and returned delinquent, against a non-resident land-owner properly served by publication of notice, in an action of ejectment by such purchaser against such former land-owner, can be defeated by showing that the taxes on the land for that year had been paid by the owner before- the land was returned delinquent and before the suit was instituted on the back-tax bill, and that there were no taxes actually due and owing on said land at the time it was returned delinquent and the action instituted. This question must be answered in the negative on the authority of the following cases: Jones v. Driskill, 94 Mo. 190; Allen v. McCabe, 93 Mo. 138 ; Brown v. Walker, 85 Mo. 262; Wellshear v. Kelley, 69 Mo. 343. And as it was so answered by the circuit court, the judgment is affirmed.

All concur except Ray, J., absent, andSHEEWOOD, J., who dissents.  