Schlafly v. Baumann

• Decision Date: 26 August 1937
• Citation: 108 S.W.2d 363,341 Mo. 755
• Parties: Eleanor L. Schlafly and John F. Schlafly, Her Husband, Albert J. Davis, Rhodes E. Cave and Walter H. Petring, as Trustees, v. William F. Baumann, Collector of the Revenue in and for the City of St. Louis, Appellant
• Court: Missouri Supreme Court

108 S.W.2d 363

341 Mo. 755

Eleanor L. Schlafly and John F. Schlafly, Her Husband, Albert J. Davis, Rhodes E. Cave and Walter H. Petring, as Trustees, v. William F. Baumann, Collector of the Revenue in and for the City of St. Louis, Appellant

Supreme Court of Missouri

August 26, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Affirmed.

James A. Waechter and Roberts P. Elam for appellant.

(1) The advertisement or publication of the notice on the 28th day of December, 1934, and the 4th and 11th days of January, 1935 and the sale proposed to be held on the 8th day of April 1935, under such publication were authorized by the strict letter of the statutes, the first publication of the notice being an "initial proceeding." Laws Ex. Sess 1933-34, p. 154, sec. 9961; Laws 1933, pp. 425-449; State ex rel. Karbe v. Bader, 336 Mo. 259, 78 S.W.2d 835. (a) The time specified in Laws of Missouri 1933, pages 425-449, for the publication of the notice of sale, and the holding of the sale, for the foreclosure of delinquent taxes upon real estate, was, and is, directory only, and not mandatory. Authorities under Point (1); St. Louis County Court v. Sparks, 10 Mo. 117; State ex inf. Gentry v. Kirby, 316 Mo. 721, 291 S.W. 457; Mead v. Jasper County, 322 Mo. 1191, 18 S.W.2d 464. (2) The trial court erred in finding, adjudging and decreeing that tax foreclosure sales under the Jones-Munger Act should be made of the property subject to easements and restrictions, and that the defendant collector should be, and was, restrained from selling at such a sale Lot 24 of Bell Place free from easements and restrictions, because: (a) The State's lien for general taxes is superior and paramount to all other interests of every character in the realty upon which the tax is assessed. Morey Engineering & Const. Co. v. St. Louis Artificial Ice Rink Co., 242 Mo. 241, 146 S.W. 1142; Merriwether v. Overly, 228 Mo. 218, 129 S.W. 1; Rohrer v. Oder, 124 Mo. 24, 27 S.W. 606; Fleckenstein v. Baxter, 114 Mo. 493, 21 S.W. 852. (b) The so-called Jones-Munger Act radically changed the former inadequate and inefficient method of enforcing the State's lien for delinquent taxes by way of suit, substituting therefor a scheme for foreclosure of the State's lien by a sale, which proceeding was, and is, strictly in rem. Laws 1933, pp. 425-449; State ex rel. Karbe v. Bader, 336 Mo. 259, 78 S.W.2d 835; Allen v. McCabe, 93 Mo. 144, 6 S.W. 62; Hilton v. Smith, 134 Mo. 499, 33 S.W. 464; Gitchell v. Kreidler, 84 Mo. 472; State v. Sargeant, 76 Mo. 557; Milner v. Shipley, 94 Mo. 109, 7 S.W. 175; State ex rel. Hayes v. Snyder, 139 Mo. 549, 41 S.W. 216. (c) The delinquent tax foreclosure sale under the Jones-Munger Act being a proceeding strictly in rem, the property, and not the interest of any particular person in it, is sold at such sale, and the purchaser (after the period of redemption expires, and he secures and records his deed) is vested with an estate in "fee simple absolute" in the property -- a new and independent title, rather than a derivative one -- free and clear of all liens, encumbrances, easements, and private interests of every character, but subject to liens for unpaid taxes as specifically provided for in the Jones-Munger Act. In addition, the Jones-Munger Act, by specific provision and language, vests a "fee simple absolute" in the purchaser of the property at the tax sale. Laws 1933, p. 430, secs. 9952a, 9952b; Laws 1933, p. 438, secs. 9957, 9957a; Allen v. McCabe, 93 Mo. 138, 6 S.W. 62; Hilton v. Smith, 134 Mo. 499, 33 S.W. 464; Blevins v. Smith, 104 Mo. 583, 16 S.W. 215; Blackwell on Tax Titles (5 Ed.), secs. 954, 965, pp. 908, 920, 921; Black on Tax Titles, secs. 231, 232, p. 295; Nedderman v. Des Moines, 268 N.W. 36; Alamogordo Imp. Co. v. Hennessee, 56 P.2d 1127; In re Hunt and Bell, 36 Ont. L. R. 256, 24 D. L. R. 590; Hill v. Williams, 104 Md. 595, 65 A. 413; Hanson v. Carr, 66 Wash. 81, 118 P. 927; Tamblin v. Crowley, 99 Wash, 133, 168 P. 982; Hefner v. Northwestern Mut. Life Ins. Co., 123 U.S. 747, 8 S.Ct. 337, 31 L.Ed. 309; Hunt v. Boston, 183 Mass. 303, 67 N.E. 246; Gwynne v. Niswanger, 20 Ohio 564; Board of Regents v. Linscott, 30 Kan. 265; Briscoe v. Coulter, 18 Ark. 440; Atkins v. Hinman, 7 Ill. 449; Langley v. Chapin, 134 Mass. 87; Sinclar v. Learned, 51 Mich. 344; Fager v. Campbell, 5 Watts, 288; Strauch v. Shoemaker, 1 Watts & S. 175; Brown v. Austin, 41 Vt. 269; Crum v. Cotting, 22 Iowa 416; Textor v. Shipley, 86 Md. 438, 38 A. 932; Abbott v. Frost, 70 N.E. 479; Gustaveson v. Dwyer, 78 Wash. 336, 139 P. 194.

John B. Denvir, Jr., Thompson, Mitchell, Thompson & Young and Bryan, Williams, Cave & McPheeters for respondents.

(1) The notice of the sale to be held on April 8, 1935, does not comply with the statutes and is invalid. Meriwether v Overly, 228 Mo. 239; Lagroue v. Rains, 48 Mo. 538; Large v. Fisher, 49 Mo. 309. (2) Building restrictions create an easement running with the land which is a property right. Strauss v. Nichols Land Co., 37 S.W.2d 508. (3) The easements of the trustees of Washington Terrace and of plaintiffs Schlafly in Lot 24 are assessed in connection, respectively, with the assessment of Washington Terrace and of Lot 48 owned by plaintiffs Schlafly. The assessment of Lot 24 does not include an assesment of the easements of the other lots in Washington Terrace in said Lot 24. Tax Lien Co. of N. Y. v. Schultze, 213 N.Y. 9, L. R. A. 1915-D, 1115, 106 N.E. 751, Ann. Cases 1916-C, 636; State ex rel. Koeln v. Cabanne Imp. Co., 278 Mo. 310; Jackson v. Smith, 153 A.D. 724, 138 N.Y.S. 657. (4) Under our system of taxation there can be no lawful collection of a tax until there is a lawful assessment, and there can be no lawful assessment except in the manner prescribed by law and of property designated by law for that purpose. State ex rel. v. Lesser, 237 Mo. 318. (5) The sale of the lot in question in this case, free and clear of easements and restrictions, would deprive plaintiffs of their property without due process of law, in violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States, and of Section 30 of Article II of the Constitution of Missouri, and of the Fifth Amendment to the Constitution of the United States, and of Section 21, Article II, of the Constitution of Missouri. State ex rel. Koeln v. Cabanne Imp. Co., 278 Mo. 310; Peters v. Buckner, 288 Mo. 631; Tax Lien Co. of N. Y. v. Schultze, 213 N.Y. 9, L. R. A. 1915-D, 1115, 106 N.E. 751, Ann. Cases 1916-C, 636; Crawford v. Senosky, 274 P. 307. (6) The term "an absolute estate in fee simple" means an estate of unlimited duration as opposed to a life estate or an estate for a given number of years. Jecko v. Taussig, 45 Mo. 170.

Jones, Hocker, Gladney & Grand for St. Louis Real Estate Exchange.

John C. Meredith, amicus curiae, for Real Estate Board of Kansas City.

Sullivan, Reeder & Finley, amici curiae, for Missouri Municipal Association.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

This appeal involves the validity of a proposed sale of real estate for delinquent taxes under the Jones-Munger Act [Laws 1933, pp. 425-449, Mo. Stat. Ann. (Supp.), p. 7980], as amended [Laws 1933, Ex. Sess., p. 154, sec. 9961].

I. The first assignment of appellant, William F. Baumann, collector of revenue in and for the city of St. Louis, is that the court erred in holding a publication on December 28, 1934, January 4 and 11, 1935, of a notice to sell, on April 8, 1935, Lot 24 of Bell Place, a subdivision of the city of St. Louis, to discharge the lien for delinquent taxes, was null and void and that a sale thereunder would not convey a marketable title.

The Jones-Munger Act provides that real estate "on which taxes are delinquent . . . shall be subject to sale to discharge the lien for said delinquent . . . taxes as provided for in this act on the first Monday of November of each year. . . ." [Laws 1933, p. 430, sec. 9952a; Mo. Stat. Ann. (Supp.), p. 7993.] Appellant says this section does not direct a sale on the "first Monday of November." However, it subjects the real estate to sale "as provided for in this act;" and Laws 1933, p. 430, sec. 9952b; Mo. Stat. Ann. (Supp.), p. 7995, specifically provides: "The . . . collector shall cause a copy of such lists of delinquent lands and lots to be printed in some newspaper of general circulation . . . for three consecutive weeks, one insertion weekly, before such sale, the last insertion to be at least fifteen days prior to the first Monday in November. . . . To such list shall be attached and in like manner so printed and published a notice that so much of said lands and lots as may be necessary to discharge the taxes . . . due thereon at the time of sale will be sold at public auction at the courthouse door . . . on the first Monday in November next thereafter, commencing at ten o'clock of said day and continuing from day to day thereafter until all are offered." (Italics ours.) Appellant admits the questioned publication did not comply strictly with said statute, but says such advertisement and the proposed sale were not wholly null and void; because: (a) the proceeding was valid under other statutes; and (b) the provisions of said Section 9952b are directory and not mandatory.

(a) Section 9961, Revised Statutes 1929, established a five-year limitation period for the institution of actions for the recovery of taxes against real estate; and was repealed and reenacted at the Extra Session of the General Assembly in 1933. Appellant says said proposed sale of April 8, 1935, and the notice thereof were entirely valid, being in strict compliance with the provisions of said reenacted section which, after providing that no proceedings for the sale of real estate...