Burris v. Bowers

• Decision Date: 05 June 1944
• Docket Number: 38814
• Parties: J. T. Burris, A. M. Wilson, and A. T. Wilson v. J. W. Bowers, Grace Bowers, Willis Walton, and C. E. Felker, Appellants
• Court: Missouri Supreme Court

181 S.W.2d 520

352 Mo. 1152

J. T. Burris, A. M. Wilson, and A. T. Wilson v. J. W. Bowers, Grace Bowers, Willis Walton, and C. E. Felker, Appellants

No. 38814

Supreme Court of Missouri

June 5, 1944

Rehearing Denied July 3, 1944.

Appeal from Scott Circuit Court; Hon. J. C. McDowell Judge.

Reversed.

J Grant Frye for appellants.

(1) The collector's deed contains sufficient recitals to show that the collector took the statutory steps essential to a transfer of the property of plaintiffs to the grantees in the collector's deed. Secs. 11126, 11162, R.S. 1939. (2) If Section 11162, R.S. 1939 was not fully complied with by the collector, the burden of proof was upon plaintiffs to disprove such, as the deed was regular on its face and prima facie established due compliance with all statutory requirements. Sec. 11162, R.S. 1939; Johnson v. McAboy, 169 S.W.2d 932. (3) Although Section 11150 prescribes a form of collector's deed to be used in instances of a first or second sale under the delinquent tax law, no form is prescribed for a deed given upon a third sale as contemplated by Section 11130; but the State Tax Commission is given the duty of prescribing the form of the collector's deed given pursuant to a third sale, and having prescribed this form, as shown by the stipulation of the parties, and the same being sufficient in recitals, the deed was valid and the court should not have cancelled the same. Secs. 11150, 11151, 11164, R.S. 1939. (4) The policy of the statutes under the Jones-Munger Law is to obviate the pitfalls and hazards of the old law and to encourage purchasers to buy at tax sales with the consequent result of not only paying the delinquent taxes but of making the land bring as much as possible; and under Section 11151, the courts will look to substance rather than form as a criterion of the sufficiency of the procedure, and under such the collector's deed in this case was sufficient. Sec. 11151, R.S. 1939. (5) The old decisions construing the tax statute are no longer applicable in view of the enactment of the recent delinquent tax statutes.

Stephen Barton for respondents.

(1) The collector's deed does not contain sufficient recitals to show the collector took the statutory steps essential to a transfer of the property of plaintiffs to the grantees in the collector's deed. This deed fails to affirmatively show by express statements that the statutory steps essential to a transfer of plaintiffs' property were complied with in the conduct of the sale upon which said deed was issued. It fails to show affirmatively by express statements (a) that the notice of sale was printed in some newspaper of general circulation and published in the county, for three weeks successively, one insertion weekly, before such sale and that the last insertion was at least fifteen days before the first Monday in November, (b) that the sale was at public auction, and (c) that the sale was conducted as the statutes provide. Secs. 11126, 11127, 11128, 11130, 11138, 11150, R.S. 1939. (2) The statute of this state, in dealing with notice of sale by collector for delinquent taxes, among other things, specifically sets forth what the notice shall contain, the paper in which to be published, number and time of insertions, and description of property. Sec. 11126, R.S. 1939. (3) The collector is required to proceed with the sale in certain ways. Secs. 11127, 11128, 11138, R.S. 1939. (4) The collector must sell at public auction to the highest bidder. Secs. 11130, 11150, R.S. 1939. (5) The statement by the collector he sold the land after notice, "in manner provided by law" or as in the deed in issue in case at bar "after having been duly advertised" is simply a conclusion or opinion by the officer and not an affirmative, express statement, as the law requires in the deed to show the law was complied with. And a tax deed that contains no further recital of the time and manner of the notice conveys no title. Spurlock v. Allen, 49 Mo. 178; Abbott v. Doling, 49 Mo. 302; Bender v. Dungan, 99 Mo. 126. (6) In passing on a deed as to whether it states affirmative facts to show that the statutes have been complied with, Ray, C.J., held, recitals "that various matters are done as required by law amount to nothing." Bender v. Dungan, 99 Mo. 126; Moore v. Harris, 91 Mo. 616; Lagrove v. Rains, 48 Mo. 536; Large v. Fisher, 49 Mo. 307; Voights v. Hart, 226 S.W. 248; Bussen Realty Co. v. Benson, 159 S.W.2d 813; Hartman v. Owens, 240 S.W. 113; Krahenbuhl v. Clay, 139 S.W.2d 971. (7) A tax deed is void on its face if it contains no recitals showing all the statutory requirements have been complied with. The statement in the deed that the collector had advertised said real estate for sale according to law, has been held a mere conclusion of the Collector and not a recital of the statutory requirements which were necessary to give validity to the deed. Brown v. Hartford, 173 Mo. 183. (8) It is the settled law of this state that a tax deed must show substantial compliance with the form prescribed by the legislature and recite the prerequisites to a sale prescribed by the statute. Meriwether v. Overly, 228 Mo. 218. (9) That a sale of land for taxes must be to highest bidder at public auction is evident from the statutes and even the deed prescribed in Sec. 11150, R.S. 1939, contains "public auction." Deed is fatal where it contains no recital that the sale was at "public" auction, or where the form of a deed provides that "at the sale begun and publicly held" the word "publicly" is omitted. Sullivan v. Donnell, 90 Mo. 278; Bingham v. Birmingham, 103 Mo. 345. (10) The recital in a deed that the sale was made in conformity with all requirements of the law is no proof lands were sold separately as the law requires. Deed omitting such recitals is void on its face. Voights v. Hart, supra; Hartmann v. Owen, 240 S.W. 113. (11) Defendant raises the point of prima facie effect of deed and burden of proof upon plaintiffs to overcome the prima facie effect of the deed. The rule applies only to cases where the tax deed is valid on its face. Deeds are only prima facie evidence of recitals of facts and not conclusions or opinions of the officers making them. Voights v. Hart, 226 S.W. 248. (12) A statement in a deed by the collector that he gave notice in manner provided by law is only a conclusion and proves nothing. The officer is required to state the facts and leave the courts to say whether he complied with the law. Such a deed does not cast upon plaintiffs any burden. It disproves itself. It is void upon its face and conveys no title. Spurlock v. Allen, 49 Mo. 178; Workman v. Moore, 177 S.W. 862. (13) It is not within the power of the legislature to dispense with proof of compliance with requirements of statute in regard to sale of lands for taxes. And unless it affirmatively appears from the recitals of the deed that the essential prerequisites of the statutes have been substantially complied with, the deed is void on its face and a recital that "after having been duly advertised" amounts to nothing. It is not prima facie evidence of anything. Burden v. Taylor, 124 Mo. 12; Sullivan v. Donnell, supra, l.c. 282. (14) The Legislature cannot delegate to the State Tax Commission or the collector the power to do what it cannot do. See citations under (13), supra. (15) The Jones-Munger law does not change prior law with respect to the effect of invalid notice of sale. State ex rel. Martin v. Childress, 134 S.W.2d 136. (16) A property owner, though failing to redeem or his failure to pay the taxes, which brought about sale of his property, does not forfeit his right to relief in equity. The section of the Jones-Munger law, setting out the alternative items of proof essential to defeat a tax title based on county collector's deed was not intended to prohibit suits to avoid tax sales on other grounds such as an account of manner in which sale was conducted. Bussen Realty Co. v. Benson, 159 S.W.2d 813; Voights v. Hart, 226 S.W. 248. (17) Plaintiffs may offer to refund in petition to set aside tax deed. Davidson v. Arne, 155 S.W.2d 155. (18) The collector's deed, in issue in case at bar, is unlawful, invalid, null and void and of no effect, because Sections 11125-11182 inclusive, of the Revised Statutes of Missouri, 1939 and all other Sections of Article Nine, Chapter Seventy-four and amendments thereto relating to the sale of lands for delinquent taxes upon which said deed is founded, are in violation of Section 3, Article X, of the Constitution of Missouri, because they discriminate between the owners and stranger to the chain of title in requiring owners to bid and pay the full amount of the taxes without requiring a stranger to the title to do likewise and because said statutes provide that the owners of certain real estate in certain jurisdictions in the State of Missouri are entitled to judicial proceedings and notices provided for in civil proceedings and deny the owners in other jurisdictions of the State such privileges and rights and, therefore, the statutes are not uniform in their operation. Secs. 11125-11182, 11183-11201, R.S. 1939.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Plaintiff Burris owned 70.43 acres in Scott County. November 21, 1941, the land was sold for taxes under the Jones-Munger law. This cause was filed by Burris and his mortgagees to set aside the tax deed and a deed from the grantees in the tax deed to the defendants J. W. and Grace Bowers. Defendant Felker was the collector and defendant Walton was a tenant on the land. The trial court, on July 14 1943, set aside the deeds mentioned and defendants appealed.

The land was first offered for sale on the first Monday in November, 1939 (taxes 1936-1938), and again offered for sale in ...