Abbott v. Lindenbower

• Citation: 42 Mo. 162
• Parties: JOEL ABBOTT, Respondent, v. W. B. LINDENBOWER, Appellant.
• Decision Date: 31 January 1868
• Court: United States State Supreme Court of Missouri

42 Mo. 162

JOEL ABBOTT, Respondent,

v.W. B. LINDENBOWER, Appellant.

Supreme Court of Missouri.

January Term, 1868.

Appeal from Polk Circuit Court.

H. J. Lindenbower, for appellant.

I. The legislature is not competent to declare that a tax deed shall be conclusive evidence of the regularity and validity of the prior proceedings, as such an exercise of the power of taxation would amount to a legislative transfer, without cause and without due process of law, of the property of one citizen to another. A tax sale can only be maintained when the law has been strictly pursued. (Rubey v. Huntsman, 32 Mo. 501.)

II. There are essential and indispensable requisites of the power of taxation which must be observed, or the owner's title cannot be divested or transferred to another. Tax sales are against common right, and no presumption arises in favor of such sales. (Reed v. Morton, 9 Mo. 868; Morton v. Reeds, 6 Mo. 64.)

III. The provisions of the revenue law which attempt to make a tax deed conclusive evidence that each and every matter and thing required by law to be done prior to the sale, has been done, are against natural justice. (Blackw. on Tax Titles, 79, and authorities cited.)

IV. A “tax deed” passes no title unless the requirements of the law have been followed, substantially at least. (Lachman v. Clark, 14 Cal. 131; Eppinger v. Kirby, 23 Ill. 521; Dukes v. Rowley, 24 Ill. 210; Abell v. Cross, 19 Iowa, 191.)

V. A sale in gross by the collector renders the deed invalid, unless the tax deed shows that it was necessary to sell the whole tract to pay the taxes. (Lovejoy v. Lunt, 48 Maine, 339.) If susceptible of subdivision, the land must be divided by the collector. Otherwise, the sale will be void. (Crowell v. Goodwin, 3 Allen, Mass., 535.) Any departure from the requirement of the revenue law, in the assessment or collection of tax, will render a tax sale under such assessment and collection void. (Woolfolk v. Fonbene, 15 La. An. 15.) A sale inside of the court-house door, when the law requires the land to be sold in front of the court-house, will render a tax deed void. (Rubey v. Huntsman, 32 Mo. 501.)

VI. The revenue law of 1864 requires judgment to be rendered, and precept to be issued by the County Court to the collector, which is the process upon which land is to be sold. A party claiming title under tax deed must produce a valid judgment, and precept issued thereon, before he can read his deed in evidence. (Haman v. Pope, 1 Gil. 131.)

T. A. Sherwood, for respondent.

I. It is competent for the legislature to change the rules of evidence and to prescribe what shall be the effect of documentary evidence in all future suits. A “tax deed,” made by the collector under the provisions of the revenue law (Adj. Sess. Acts 1863-4, p. 89, § 22), is conclusive evidence that all the requirements of that act had been complied with. This court has held that it was competent for the legislature to make such deed prima facie evidence. (City of St. Louis, to use, etc., v. Oeters, 36 Mo. 463.) And if the legislature may change or interfere with the rules of evidence, it may control them. (Steadman v. Planters' Bank, 2 Eng., Ark., 427; Allen v. Armstrong, 16 Iowa, 508.)

II. The act referred to is not obnoxious on the ground of its depriving an owner of his property without due process of law. (Pillow v. Roberts, 13 How. 472; Gwynne v. Neiswarger, 18 Ohio, 400.)HOLMES, Judge, delivered the opinion of the court.

This was an action of ejectment upon a tax title. On the trial, the plaintiff offered in evidence the collector's deed, executed to him under the provisions of the statute of 1864 (Adj. Sess. Acts 1863-4, p. 89, §§ 21, 22), which provided that the deed should “vest in the grantee, his heirs and assigns, the title to the real estate therein described,” and should be “held and received, in all courts and places where the title to the real estate thereby conveyed is involved, as conclusive evidence that each and every act and thing required to be done by the provisions of this act had been complied with; and the party offering such deed in evidence shall not be required to produce the judgment, precept, nor any other matter or thing, as evidence to sustain such conveyance and the title thereby acquired: Provided, however, that the party controverting such deed, and the title thereby conveyed, may, for the purpose of invalidating or defending the same, show either one of the following facts, only: 1st, 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; 2d, that the taxes due thereon had been paid, according to law, before the sale; 3d, that such land had been duly redeemed, according to law, before the execution of such deed.” The deed was read in evidence, and the plaintiff rested his case thereon.

For the purpose of invalidating this deed, the defendant offered, and the court refused to admit, evidence tending to prove: 1st, that the land had not been duly assessed for the year 1863 at the time and in the manner required by law; 2d, that the land was not assessed in the name of the real owner or any former owner, or any tenant or occupant of said land; 3d, that all the land in the county had not been assessed, but much of it omitted from the assessment of that year; 4th, that the tax book was not made out nor delivered to the collector in the manner or at the time prescribed by law; 5th, that the collector did not proceed with the collection of such tax book, nor give notice of the time and place where he would receive the taxes assessed for said year, as required by law; 6th, that the delinquent list was not made out and returned by the collector at the time or in the manner prescribed by law; 7th, that the collector did not give, nor was the judgment rendered upon, proper notice of his application for judgment against said land for the taxes and costs due thereon; 8th, that no precept for the sale of said land had been issued by the clerk; 9th, that the land was not sold at the court-house door, nor in the smallest subdivisions into which it could be divided, but was sold in gross.

All this evidence was excluded, for the reason that the tax deed was held to be conclusive evidence that everything had been done which the law required, except the three things above specified by way of exception in the act itself. An instruction was given for the plaintiff to the same effect. Instructions of a contrary tenor were refused for the defendant, and (among the rest) one to this effect: That the act aforesaid, so far as it attempts to make the tax deed conclusive cvidence, as therein recited, operated to deprive the citizen of his property without due process of law, and to take private property for public use without just compensation.

There can be no doubt that the State has a sovereign power of taxation over all the property in the State which is not exempted from State taxation by the laws of the United States, and it has power to enforce the collection of taxes,...