Brown v. Chaney

• Citation: 256 Mo. 219,165 S.W. 335
• Parties: BROWN v. CHANEY et al.
• Decision Date: 24 March 1914
• Court: Missouri Supreme Court

165 S.W. 335

256 Mo. 219

BROWN v. CHANEY et al.

Supreme Court of Missouri, Division No. 2.

March 24, 1914.

1. TAXATION (§§ 636, 643)—SALE OF PROPERTY FOR TAXES—NATURE OF PROCEEDING— PETITION.

A proceeding to enforce the state's lien for unpaid taxes is practically one in rem, and it is essential to a judgment of sale that the property be definitely described in the petition.

2. TAXATION (§ 643)—SALE OF LAND FOR TAXES—PETITION—SUFFICIENCY.

A petition for the sale of land for unpaid taxes described one parcel as "lot 66, block K., W. & B. map of Nevada," and another parcel as "lots 7, 8, 9 and 10, Robinson & Martin's Add. to city of Nevada." Held, that the descriptions were sufficient, notwithstanding the abbreviation of Wood & Blanchard's Map for which the initials were used, and the abbreviation of the word "addition."

3. TAXATION (§ 689)—SALE OF LAND FOR TAXES—VACATION OF SALE.

Unless the petition seeking to set aside a sale of land for taxes in plain terms counts upon the inadequacy of the price as a ground, a judgment setting aside the tax sale on that ground cannot be sustained.

4. TAXATION (§ 689)—SETTING ASIDE SALE— PRESENTATION OF QUESTIONS OF REVIEW IN COURT BELOW—NECESSITY.

In a suit to quiet his title to land which had been judicially sold for unpaid taxes, the question of the inadequacy of the price cannot be raised on appeal, where the petition did not specifically set up inadequacy of price, and plaintiff's motion for new trial after an adverse verdict did not refer to the inadequacy of price as a reason why the judgment denying a vacation of the sale was erroneous.

5. APPEAL AND ERROR (§ 719)—BRIEFS—ASSIGNMENT OF ERROR.

Where an error complained of was properly preserved in the court below, and appellant's points and authorities refer to it, the question will be considered, although it is not included in the assignments of error.

6. TAXATION (§ 689)—SALE OF PROPERTY FOR TAXES—VACATION OF SALE.

Plaintiff, a man of affairs, neglected to pay taxes on certain real property located in the city of his residence. After the taxes became delinquent, suit was commenced by the county collector to enforce payment of the taxes, and personal service was had upon plaintiff, who, though his place of business was only a short distance from the courthouse, failed to take any measures to avoid forfeiture. Held, that plaintiff was not entitled to equitable relief from the sale under the judgment on the ground that the property was sold for a grossly inadequate price.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

Action by J. Sam Brown against L. M. Chaney and others. From a judgment for defendants, plaintiff appeals. Affirmed.

M. T. January and A. E. Elliott, both of Nevada, Mo., for appellant. Scott & Bowker, of Nevada, Mo., for respondents.

WALKER, P. J.

This is an action to quiet title under section 2535, R. S. 1909. Two separate suits were brought to determine the title of the land described herein, and, the issues being the same, they were consolidated and tried as one case, and will be so considered here. The appellant resided in the city of Nevada, where he owned a large number of lots or tracts of land. He failed to pay the taxes on 17 of these tracts for the year 1904, permitting the same to become delinquent, and in 1909 the treasurer of Vernon county, in which Nevada is located, under his authority as ex officio collector of the revenue, said county being under township organization, brought suits in the circuit court against appellant as the owner of said delinquent lots to enforce the payment of taxes for said year. Personal service was had on the appellant. On a hearing before the court, judgments were rendered in said suits at the May term, 1910, and at the following October term said delinquent tracts were sold under special executions and were bought by different parties. Respondent Chaney at said sale bought the tract described in the petition as "lot 66, block K, W. & B. map, city of Nevada," for $6, and "lots 7, 8, 9 and 10, block 10, Robinson-Martin's Add. to city of Nevada," for $4, and deeds to said Chaney were thereafter made in conformity with the law. Respondent has since conveyed lot 66, block K, by quitclaim deed to George H. and Anna M. Speece, for $400. Appellant's petitions allege oversight as the cause of his failure to pay the taxes on said lots; that the tax petition insufficiently described "lot 66 of block K, W. & B. map of Nevada," the correct description of which is "lot 66, block K, Wood & Blanchard's map of the city of Nevada"; and that "lots 7, 8, 9 and 10, Robinson & Martin's Add. to city of Nevada," should have been described as in "Robinson & Martin's addition to the city of Nevada, Missouri"; that this misled bidders and caused said lots to sell below their real value; that he has tendered respondent Chaney the amount of his bids with interest and expenses, which the latter has refused. Wherefore appellant tenders in court and offers to pay such sums as the court may find respondent Chaney is entitled to by reason of his purchase of said lots, and that the court may set aside said tax deed to respondent and the quitclaim deed to said Speeces, and ascertain and determine the title to said land as between appellant and respondents, and decree that appellant is the owner in fee to said land and that respondents have no right or title thereto. The answer of respondent Chaney is first a general denial, and, second, that he bought said land at a tax sale, obtained title thereto, and as to lot 66, block K, conveyed same to George H. and Anna M. Speece. The answer of respondents Speece is first a general denial, and, second, that they claim the premises described in plaintiff's petition as the owners in fee. Upon a hearing of these cases before the trial court, a judgment was rendered in favor of the respondents from which the appellant appeals.

Before and during the time of the proceedings herein, the appellant was continuously a resident of the city of Nevada, and had an office within a block of the court-house. The cause of the nonpayment of these taxes as alleged in the petition, and as testified to by appellant, was simply that he had neglected to pay same. No issues are raised as to the regularity of the proceedings other than that the description of the property was insufficient.

An examination of the petition and record entries, therefore, other than to determine their sufficiency in regard to the matter referred to, is not necessary.

I. Description of Land.

The rule is well established in this jurisdiction that a proceeding to enforce the state's lien for unpaid taxes is practically one in rem. In suits of this character a necessary part of the cause of action is a definite description of the property in the petition. O'Day v. McDaniel, 181 Mo. 529, 534, 80 S. W. 895; Vaughan v. Daniels, 98 Mo. 230, 234, 11 S. W. 573; Milner v. Shipley, 94 Mo. 106, 109, 7 S. W. 175. A description is sufficient if it will, by...