Abbott v. Lindenbower

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHOLMES
Citation42 Mo. 162
Decision Date31 January 1868
PartiesJOEL ABBOTT, Respondent, v. W. B. LINDENBOWER, Appellant.

42 Mo. 162

JOEL ABBOTT, Respondent,
v.
W. B. LINDENBOWER, Appellant.

Supreme Court of Missouri.

January Term, 1868.


[42 Mo. 163]

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

[42 Mo. 164]

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.)

[42 Mo. 165]

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...

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45 practice notes
  • Norborne Land Drain. Dist. v. Egypt Township, No. 29691.
    • United States
    • United States State Supreme Court of Missouri
    • September 3, 1930
    ...assessed. Such an assessment is fatally defective and void. 19 C.J. 757; 3 Cooley on Taxation (4 Ed.), 2216; Abbott v. Lindenbower, 42 Mo. 162; Hume v. Wainscott, 46 Mo. 145; St. Louis v. Ranken, 96 Mo. 497; Blevins v. Smith, 104 Mo. 590; Sedalia v. Gallie, 49 Mo. App. 396; State v. Hamilto......
  • Nind v. Myers
    • United States
    • United States State Supreme Court of North Dakota
    • October 16, 1906
    ...v. Seeley, 13 Mich. 329;Case v. Dean, 16 Mich. 12;White v. Flynn, 23 Ind. 46;Corbin v. Hill, 21 Iowa, 70;Abbott v. Lindenbower, 42 Mo. 162;Id., 46 Mo. 291;Little Rock R. R. Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55; [109 N.W. 348]Hand v. Ballou, 12 N. Y. 541;Joslyn v. Rockwell, 128 N. Y. 33......
  • Spitcaufsky v. Hatten, No. 39105.
    • United States
    • Missouri Supreme Court
    • July 31, 1944
    ...requirements of due process of law. Marx v. Hanthorn, 148 U.S. 72, 13 S. Ct. 508; Small v. Hull, 32 Pac. (2d) 4; Abbott v. Lindenbower, 42 Mo. 162; State ex rel. v. Atkinson, 195 S.W. 741; Black on Tax Titles (2 Ed.), chap. 26, p. 517; Johnson v. McAvoy, 169 S.W. (2d) 932; Beckwith v. Curd,......
  • State ex rel. Field v. Smith, No. 31347.
    • United States
    • Missouri Supreme Court
    • March 15, 1932
    ...v. Hackman, 314 Mo. 33; O'Donnell v. Wells, 21 S.W. (2d) 762; State ex rel. Telegraph Co. v. Atkinson, 271 Mo. 195; Abbott v. Lindenbower, 42 Mo. 162; Allen v. Armstrong, 16 Iowa, 508; Railway Co. v. Simonson, 62 Kan. 802, 68 Pac. 653; Railway Co. v. Minnesota, 131 U.S. 418; Cooley on Const......
  • Request a trial to view additional results
45 cases
  • Norborne Land Drain. Dist. v. Egypt Township, No. 29691.
    • United States
    • United States State Supreme Court of Missouri
    • September 3, 1930
    ...assessed. Such an assessment is fatally defective and void. 19 C.J. 757; 3 Cooley on Taxation (4 Ed.), 2216; Abbott v. Lindenbower, 42 Mo. 162; Hume v. Wainscott, 46 Mo. 145; St. Louis v. Ranken, 96 Mo. 497; Blevins v. Smith, 104 Mo. 590; Sedalia v. Gallie, 49 Mo. App. 396; State v. Hamilto......
  • Nind v. Myers
    • United States
    • United States State Supreme Court of North Dakota
    • October 16, 1906
    ...v. Seeley, 13 Mich. 329;Case v. Dean, 16 Mich. 12;White v. Flynn, 23 Ind. 46;Corbin v. Hill, 21 Iowa, 70;Abbott v. Lindenbower, 42 Mo. 162;Id., 46 Mo. 291;Little Rock R. R. Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55; [109 N.W. 348]Hand v. Ballou, 12 N. Y. 541;Joslyn v. Rockwell, 128 N. Y. 33......
  • Spitcaufsky v. Hatten, No. 39105.
    • United States
    • Missouri Supreme Court
    • July 31, 1944
    ...requirements of due process of law. Marx v. Hanthorn, 148 U.S. 72, 13 S. Ct. 508; Small v. Hull, 32 Pac. (2d) 4; Abbott v. Lindenbower, 42 Mo. 162; State ex rel. v. Atkinson, 195 S.W. 741; Black on Tax Titles (2 Ed.), chap. 26, p. 517; Johnson v. McAvoy, 169 S.W. (2d) 932; Beckwith v. Curd,......
  • State ex rel. Field v. Smith, No. 31347.
    • United States
    • Missouri Supreme Court
    • March 15, 1932
    ...v. Hackman, 314 Mo. 33; O'Donnell v. Wells, 21 S.W. (2d) 762; State ex rel. Telegraph Co. v. Atkinson, 271 Mo. 195; Abbott v. Lindenbower, 42 Mo. 162; Allen v. Armstrong, 16 Iowa, 508; Railway Co. v. Simonson, 62 Kan. 802, 68 Pac. 653; Railway Co. v. Minnesota, 131 U.S. 418; Cooley on Const......
  • Request a trial to view additional results

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