Burke v. Brown

• Decision Date: 21 February 1899
• Citation: 49 S.W. 1023,148 Mo. 309
• Parties: Burke, Plaintiff in Error, v. Brown et al
• Court: Missouri Supreme Court

49 S.W. 1023

148 Mo. 309

Burke, Plaintiff in Error, v. Brown et al

Supreme Court of Missouri

February 21, 1899

Transferred from Kansas City Court of Appeals.

Affirmed.

John Cosgrove for plaintiff in error.

(1) The statute under consideration asserts a broad equity. It was enacted to afford persons who, to enable the State to collect its revenue, purchased lands at tax sales, a remedy to be reimbursed the money paid to relieve the delinquent land from its burdens of taxation. It was made for just such cases as this. The lands of defendants unquestionably were subject to taxation. No taxes were paid thereon for several years by defendants. The plaintiff's assignor paid these taxes from 1872 to 1885, and plaintiff is entitled, under the statute, to have the amount so paid declared a lien upon the land, which was for more than twelve years, relieved by his money from its burden of taxation. Defendants can not rightfully complain, if they are thus required to discharge their share of the public burdens, although the sale of the lands, by the collector of Moniteau county was invalid, and passed no title to the purchaser. Allen v. Buckley, 94 Mo. 158; Bingham v. Birmingham, 103 Mo. 345; Pitkin v. Reibel, 104 Mo. 505; Cooley on Taxation 374; Pitkin v. Shacklett, 106 Mo. 571; Pitkin v Miller, 106 Mo. 557; Gregg v. Jesberg, 113 Mo. 34; Stewart v. Corbin, 38 Ia. 571. (2) William G. Howard who paid the taxes on the land, was not a volunteer. He paid them to protect his supposed title of property bought at a sale, which the circuit court of Moniteau county held vested in him a perfect title. If the Supreme Court had affirmed the judgment of the trial court, then the taxes paid by Howard would have been paid for his own benefit, and he would have no claim on any one to have them repaid. The rights of plaintiff are based upon the fact that the title of Howard has failed. Carter v. Phelps, 49 Mo.App. 319; Allen v. White, 98 Mo. 62. (3) The plaintiff could have obtained the relief he seeks in this proceeding by the Supreme Court, had he applied to that court therefor, but the right of action is preserved to him by statute.

Draffen & Williams for defendants in error.

(1) (a) The plaintiff is precluded from prosecuting this action by the final judgment rendered by the Supreme Court, in the suit by the holder of the tax deed for the recovery of the land. The statute relied upon by plaintiff provides, that if the holder of the tax deed be defeated in an action for the recovery of the land, the successful claimant shall be adjudged to pay him the taxes, etc., paid by him. This must be adjudged in the suit for the recovery of the land. Only one trial seems to be contemplated. Pitkin v. Reibel, 104 Mo. 505; White v. Shell, 84 Mo. 569; Pitkin v. Shacklett, 117 Mo. 547. (b) The plaintiff in fact concedes that Howard might have had the matters involved in this case determined in that suit. The final judgment in that case is an adjudication against the plaintiff's claim in this suit. The pleadings and evidence then before the court authorized a determination of the rights asserted in the present action. 2 Black on Judg., sec. 731; White v. Van Houton, 51 Mo. 577; Chouteau v. Gibson, 76 Mo. 38; Robinson v. Boyd, 23 S.W. 72; Vail v. Rinehart, 4 N.E. 218; Stump v. Hornback, 109 Mo. 272; Ketchum v. Christman, 30 S.W. 312; Givens v. Thompson, 110 Mo. 432; Offutt v. John, 8 Mo. 120. (2) (a) The so-called taxes paid by plaintiff's assignor were invalid; constituted no lien upon defendant's land; and defendant was under no obligation to pay them. None of the alleged tax books were certified by the county clerk or authenticated in any manner. They were merely unofficial lists. Howard v. Heck, 88 Mo. 456; State ex rel. v. Cook, 82 Mo. 185; Pike v. Martindale, 91 Mo. 268. (b) The statute relied upon by the plaintiff only applies to cases where the State has acquired a valid lien upon the land for its taxes, but, by some irregularity in the tax proceedings, the purchaser fails to acquire a good title. It can have no application where no tax was ever levied, assessment made, or tax book delivered to the collector. Barber v. Evans, 27 Minn. 92; Tierney v. Union Lumber Co., 47 Wis. 248; Roberts v. Deeds, 57 Ia. 326; Philleo v. Hiles, 42 Wis. 527; Early v. Whittingham, 43 Ia. 162; Harper v. Roe, 53 Cal. 233; Pitkin v. Riebel, 104 Mo. 505.

John Cosgrove for plaintiff in error in reply.

The legislative intent was to encourage persons to purchase at sales for delinquent taxes, where the owner thereof had failed or neglected to discharge his duty to the State. The true test is, did the payment of taxes by the purchaser at the tax sale made by the collector of Moniteau county relieve the land from any taxes for the years for which it was delinquent? If the State and county could not again legally assess it for those years it is manifest that the plaintiff or his assignor has paid a claim to the State that morally and legally should have been paid by the defendants. It has been held in Packard v. New Limerick, 34 Me. 266, that taxes once paid can not be again collected, although illegally collected. See, also, Bank v. Lewis, 64 Miss. 734; Coe v. Tarwell, 24 Kan. 566.

BURGESS J. Marshall, J., absent.

OPINION

In Banc.

BURGESS, J. --

This case was in the first instance taken by writ of error to the Kansas City Court of Appeals where an opinion was delivered by Judge Gill, concurred in by the other members of the court, affirming the judgment of the trial court. A motion was then filed by plaintiff for a rehearing, one of the grounds being that the cause involves the construction of the revenue law. The motion was overruled, and the case certified to this court upon that ground.

The opinion of the court of appeals is as follows:

"Gill J. -- In October, 1876, the collector of Moniteau county sold certain lands in said county, belonging to defendant Brown, for the taxes of 1873 and 1875, and one Howard became the purchaser, to whom a tax deed was made. Thereafter Howard instituted an action of ejectment to recover the land. He was successful in the circuit court, but on appeal, the Supreme Court declared the tax sale invalid and reversed the judgment, without remanding. [Howard v. Heck, 88 Mo. 456.] In March, 1888, Howard brought this suit, substantially alleging in his petition, that at the date of his purchase at the tax sale and subsequently, he paid taxes on the land for the years 1871 to 1885, inclusive. For the amount of these, with penalties and interest, he prayed that he might have judgment, which should be declared a lien on the lands, and that they be sold for the payment thereof, etc. The allegations of the petition were put in issue by defendant's answer. During the pendency of the action, and before the trial, Howard's interest therein was transferred to Burke, who was substituted as plaintiff.

"At the trial the facts were practically agreed on. It stands admitted that plaintiff's assignor (Howard) paid certain charges appearing against the land and designated as the State and county taxes for the years 1871 to 1885, inclusive. Among other matters of defense stated in the agreed case, appears the following:

"'The defendants then introduced the real estate tax books from 1871 to 1886 inclusive, being all of the years for which said Howard paid taxes on said land, and it is also admitted for the purpose of this appeal, that said books were not certified to by the clerk of the county court, and that they did not contain a certificate that the same was a true copy of the assessor's book of the year of which it is purported to be the tax book, and that said books are not authenticated by the seal of the county court, or the certificate of the clerk of said court, as required by sec. 65, 2 W. S. 1872, p. 1171, and were not authenticated in any manner; that these were the only books upon which the payment of taxes was made by the plaintiff's assignor.'

"As further indicating the basis of plaintiff's claim, we append an instruction, which he asked and the court declined to give:

"'If the court believes from the evidence that the lands described in plaintiff's amended petition were sold on the 2d day of October, 1876, by the collector of the revenue of the county of Moniteau, for the purpose of collecting the taxes then due and unpaid and which had been assessed against said land for the years 1872, 1873 and 1874, or either of said years, and that the said land was purchased at said sale by William G. Howard, and that he then and there paid to said collectors the said taxes, and afterwards received a deed from the collector of said county for said land, and that after the said Howard received his said deed from the collector of the said county, he paid all of the taxes assessed against said land for the subsequent years, up to and including those of 1885, and that the said Howard, to wit, in the year 1881, commenced suit in ejectment in the circuit court of said Moniteau county, against defendant Heck; and that afterwards the defendant Brown became a party defendant therein; and that judgment was rendered in the circuit court of said Moniteau county, in favor of the plaintiff therein, adjudging and decreeing that he was entitled to the possession of said land, and that an appeal was taken from said judgment to the Supreme Court of this State, where the said judgment was reversed, and that since then, to wit, on the 19th day of May, 1892, the said Howard sold, assigned, transferred and conveyed all his right, title, claim and interest in and to said land and the money paid to said collectors of said county of Moniteau, to the plaintiff, Edmund Burke, then the said Burke is entitled to recover in this case the amount of money so paid by the said...