State ex rel. Rosenblatt v. Gibson

• Decision Date: 21 March 1882
• Citation: 12 Mo.App. 1
• Parties: STATE OF MISSOURI, EX REL. M. A. ROSENBLATT, Plaintiff in Error, v. CHARLES GIBSON, Defendant in Error.
• Court: Missouri Court of Appeals

12 Mo.App. 1

STATE OF MISSOURI, EX REL. M. A. ROSENBLATT, Plaintiff in Error, v. CHARLES GIBSON, Defendant in Error.

Court of Appeals of Missouri, St. Louis.

March 21, 1882

Under the statute of 1864, an assessment for taxes must have been made in the name of the real or apparent owner; and an assessment made in the name of a former owner after the real owner had brought his title and ownership to the assessor's notice, is void.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Affirmed.

A KING, for the plaintiff in error.

CHARLES GIBSON, pro se.

OPINION

THOMPSON J.

This is a suit under the back-tax law of 1877, to enforce the state's lien for taxes against the land described in the petition, for the years 1868, 1869, and 1870. The petition is in the usual form employed by the collector of the city of St. Louis in such suits. The question which arises upon the record is presented by a demurrer to the answer. The answer is as follows: " The defendants, in answer to the petition, state that Charles Gibson became the owner in fee of the property named in the petition, in November, 1861, was then put in possession, and has ever since remained in the possession of the same; that he paid all the taxes levied on the same for a long time thereafter, when the assessor voluntarily chose to, and did, assess the taxes to one Evans Rogers, who had not then any claim to the same; that the same were forfeited for non-payment of said taxes assessed against said Rogers, and the same were bought in at the public sale by one N. D. Allen; that said Gibson notified said assessor and subsequent assessors that he would not pay said taxes so long as they were assessed to said Rogers or Allen, but that said assessors, arbitrarily and against the will of said Gibson, continued to assess the same to said Allen as the owner of said premises for a number of years; that the taxes for which this suit is brought were so assessed in the name of said Allen, and the defendants deny that said assessments were legal, and they aver that the same were void; that said Gibson never had any legal right to appear before the board of appeals, and never was made in any way party to said proceedings. After the year 1870, the taxes were assessed to said Gibson, and they have been by him ever since that time regularly paid. These defendants deny each and all of the averments contained in the petition, except such as are admitted herein."

It will be perceived that the question here presented is to be determined by the law as it stood prior to the revenue law of 1872, which dispensed with the necessity of assessing lands for taxation in the name of the real or apparent owner. Rev Stats., sect. 6853. The law under which this tax was assessed appears to have been the Revenue Act of 1864, embodied in Chapter XII. of the Revised Statutes of 1865. By section 10 of this statute, land was " in all cases to be assessed to the person appearing to be the owner at the time of the assessment" (Gen. Stats. 1865, chap. 12, sect. 13); and by section 29, it was provided that " when the name of the owner or claimant cannot be ascertained, such land shall be taxed by the numbers and in the name of the original owner," and shall " be sold and conveyed by their numbers and in the name of the original owner, without reference to the present owners or claimants." Gen Stats. 1865, chap. 12, sect. 39. Construing these provisions it was held in Abbott v. Lindenbower (42 Mo. 162), that " an assessment in the name of a person who neither was, nor ever had been, the owner of the property, would be an utterly void assessment." " The assessors," continued the court, " have no jurisdiction to assess property otherwise than as the statute prescribes; and a void assessment (which is equivalent to no assessment at all) against the owner, cannot be made the foundation of a sale and conveyance of his land, even by legislative enactment. A valid assessment is an essential prerequisite to the lawful exercise of the power of taxation. It is a necessary condition of an effectual transfer of the title. * * * We think it may be safely said that a valid assessment of the property to the true owner, and notice of the judgment to be rendered against him, are...