Abbott v. Lindenbower

• Decision Date: 31 July 1870
• Citation: 46 Mo. 291
• Parties: JOEL ABBOTT, Respondent, v. WHEELER B. LINDENBOWER, Appellant.
• Court: Missouri Supreme Court

46 Mo. 291

JOEL ABBOTT, Respondent,

v.WHEELER B. LINDENBOWER, Appellant.

Supreme Court of Missouri.

July Term, 1870.

Appeal from Third District Court.

Jas. F. Hardin and H. J. Lindenbower, for appellant.

I. The power of sale does not attach to land for non-payment of taxes until every prerequisite has been complied with. The party claiming under a tax deed has the burden on him to show a substantial compliance with the law through which he claims title. Tax sales are against common justice and right, and a strict construction must be given to all enactments authorizing such sales.

II. Tax deeds are evidence only of the facts therein recited, and the Legislature has no authority to make such deeds conclusive evidence that each and every matter and thing required to be done by the provisions of such act has been complied with. It will be observed that the deed in the case at bar does not pretend to recite any of the former acts of listing, assessing, levying tax, etc.; yet it is claimed that the deed is conclusive evidence that all these things were done in the proper time and manner. Such doctrine is monstrous.

III. The Circuit Court erred in giving the declarations of law on the part of the plaintiff. (See Abbott v. Lindenbower, 42 Mo. 162; Ruby v. Huntsman, 32 Mo. 501; Reed v. Morton, 9 Mo. 868; Morton v. Reed, 1 Mo. 64; Lachman v. Clark, 14 Cal. 131; Eppinger v. Kirby, 23 Ill. 521; Dukes v. Rowley, 24 Ill. 210; Abell v. Cross, 14 Iowa, 191; Lovejoy v. Lunt, 48 Me. 339; Crowell v. Goodwin, 3 Allen, Mass., 535; Woolfolk v. Fonbene, 15 La. Ann. 15; Haman v. Pope, 1 Gilm., Ill., 131; Allen v. Armstrong, 16 Iowa, 508; Whitney v. Thomas, 23 N. Y. 281; Scott v. Y. M. Society, 1 Doug., Mich., 121; Doughty v. Pope, 3 Den. 595, 599; Beekman v. Bingham, 1 Seld. 366; Blackw. Tax Tit. 78-83; Curry v. Hinman, 11 Ill. 428; Hughey v. Horrell, 2 Ohio, 378; 3 Comstock, 401; 15 Verm. 72; 22 Pick. 387; Isaacs v. Wiley, 12 Verm. 677; Smith v. Bodfish, 27 Me. 295; Blakeney v. Ferguson, 3 Eng. 277; Ronkendorff v. Taylor, 4 Pet. 349; Brown v. Veazie, 25 Me. 362; Young v. Martin, 2 Yates, 312; Shearer v. Woodburn, 10 Barr, 511; Bush v. Davidson, 16 Wend. 554; Langdon v. Poor, 20 Verm. 15; Thatcher v. Powell, 6 Wheat. 119; Gaines v. Stile, 14 Pet. 322; Judevine v. Jackson, 18 Verm. 472; Sharp v. Johnson, 4 Hill, 99; Corwin v. Merrit, 3 Barb., S. C., 343; Atkins v. Kinman, 20 Wend. 247; McDonough v. Gravier, 9 La. 546; Hawkins v. Kempfe, 3 East, 410; Sumner v. Sherman, 13 Verm. 612; Little v. Thurston, 3 Mass. 432; 12 Verm. 677; 3 N. H. 103.) As to construction of former statutes in this State, see 9 Mo. 868; 14 Mo. 575; 17 Mo. 161; 19 Mo. 331; 21 Mo. 420; 29 Mo. 377; 28 Mo. 62; 32 Mo. 501; 33 Mo. 312, 335.

IV. Section 112, p. 127, Gen. Stat. 1865, so far as it attempts to make the tax deed evidence of former acts and things, irrespective of whether they were ever performed or transpired, is in direct conflict with article 5 of the amendments to the constitution of the United States, providing that “no person shall be * * deprived of life, liberty, or property, without due process of law.” (See Wilkinson v. Leland et al., 2 Pet. 627.)

T. A. Sherwood, for respondent, relied on Abbott v. Lindenbower, 42 Mo. 162.

BLISS, Judge, delivered the opinion of the court.

This cause has been once before the court, and is reported in 42 Mo. 162-9. It was there held that that part of the revenue act under consideration, making the tax deed conclusive evidence that everything required to be done by the provisions of the act had been complied with, was unconstitutional as far as it prohibited the owner of the land from showing that the tax assessment was not made against him by name, and that judgment was rendered without proper notice. The court also intimated that certain other matters and omissions sought to be proved to invalidate the deed might be concluded by it, and it was plainly declared that while the Legislature could not make a deed conclusive evidence of matters vitally essential to the valid exercise of the taxing power, it had power to make a deed of a public officer prima facie evidence of title. The positions of the court upon the matters involved were clearly stated in the opinion, and we still unhesitatingly adhere to them.

When the case went back to be again tried, the plaintiff, after having submitted his deed in evidence, offered testimony tending to prove that the land was subject to taxation at the time of the assessment, that the taxes had not been paid, that the land had not been redeemed before the execution of the deed, and that it belonged to and was in possession of J. M. Noland, in whose name it was assessed, and that the notice by publication of the intended application for judgment was properly given. The defendant offered no evidence, and the plaintiff recovered judgment.

The court made the following declaration of law on behalf of the plaintiff, to-wit: “That a deed executed by the collector under the provisions of the act contained in the session laws of 1863-4, entitled ‘an act for the assessment and collection of the revenue in the State of Missouri,’ approved February 4, 1864, shall be held and received in all courts and places where the title to the real estate therein conveyed is involved, as conclusive evidence that each and every act and thing required to be done by the provisions of said act had been complied with; and the party offering such deed in evidence shall not be required to produce the judgment, precept, or any other matter or thing, as evidence to sustain the title thereby acquired, although the party controverting such deed, and the title thereby conveyed, may, for the purpose of invalidating and defending against the same, show either one of the following facts only: first, that the land conveyed by such deed was not subject to taxation at the time of the assessment thereof, under which assessment such sale was made; second, that the taxes due thereon had been paid according to law before the sale; third, that such land had been duly redeemed according to law before the execution of such deed; fourth, that the land was not assessed in the name of the owner at the time of the assessment, or some former owner of said land; fifth, that notice was not given of the intended application for judgment against said land at the time and in the manner prescribed by law; and that any other evidence save that enumerated and specified in the five excepted instances aforesaid is wholly incompetent, irrelevant, and inadmissible in all cases where such deed and the title thereby acquired, as to the conclusiveness and validity thereof, is attempted to be controverted or invalidated.”

This declaration is in the language of the statute, adding only the four or five exceptions, for the purpose, I suppose, of making it conform to the opinion of the court before referred to. Yet as an abstract proposition of law it can not be correct, and contradicts the spirit of that opinion, which was that certain things are essential to the valid exercise of the taxing power; that the Legislature had no power to dispense with them; that in defending against the effect of a tax deed, the want or omission of the things which are thus essential may be shown in evidence to invalidate the deed, notwithstanding the statute declares it to be...