Campbell v. Daub

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Campbell v. Daub, 159 S.W.2d 683, 349 Mo. 153 (Mo. 1941)
• Decision Date: 10 June 1941
• Docket Number: 37183
• Parties: Alvin R. Campbell v. Charles N. Daub et al., Appellants

159 S.W.2d 683

349 Mo. 153

Alvin R. Campbell v. Charles N. Daub et al., Appellants

No. 37183

Supreme Court of Missouri

June 10, 1941

Rehearing Denied March 13, 1942.

Appeal from Circuit Court of County of St. Louis; Hon. John A Witthaus, Judge.

Reversed and remanded (with directions).

Alfred H. Kerth and Dalton W. Schreiber for appellants.

(1) In ejectment by purchaser at tax sale against tenant landowners, being adverse claimants, have a right to become parties defendant. Sec. 701, R. S. 1929; Queen City Inv Co. v. Kreider, 31 S.W.2d 1002. (2) Sales of lands for delinquent taxes under the Jones-Munger Act by ex parte proceedings are in derogation of private rights of property and of the common law, and the statutory proceedings thereunder should be strictly construed in favor of the taxpayer and strict compliance therewith vigorously exacted. Schafley v. Baumann, Collector, 108 S.W.2d 363; Meriwether v. Overly, 228 Mo. 218, 129 S.W. 1; Large v. Fischer, 49 Mo. 307. (3) The publication of public notice under which the Collector sold the property in question is defective and insufficient and is no notice to defendants to give the Collector authority to offer and to sell the lands, and his deed thereunder is invalid and said sale is in violation of Section 9952-b, R. S. Mo., Laws 1933, page 430, and Section 9958-b, R. S. Mo., Laws 1933, page 441, and to permit said sale to stand deprives defendants of due process of law in violation of Sec. 30, Article II, of the Constitution of the State of Missouri. Sec. 9952-b, R. S. Mo., Laws 1933, p. 430; Sec. 9958-b, R. S. Mo., Laws 1933, p. 441; Sec. 30, Art. II, Mo. Const.; 67 A. L. R. 885 to 908; 61 C. J., sec. 1515, p. 1114, sec. 1519, p. 117; Meriwether v. Overly, 228 Mo. 218, 129 S.W. 1; Spurlock v. Dougherty, 81 Mo. 171; Martin v. Kitchen, 195 Mo. 477, 93 S.W. 780; Schafley v. Baumann, Collector, 108 S.W.2d 363. (4) The sale by the Collector under which defendant secured a deed to the lands in question is invalid for the reason that said Collector did not, at said sale, offer for sale so much of the lands of defendants as would pay the taxes, interest and charges thereon. Sec. 9952-c, R. S. Mo., Laws 1933, p. 431; Roth v. Gebbert, 123 Mo. 21, 27 S.W. 528; Shelton v. Franklin, 224 Mo. 342, 123 S.W. 1084, 135 A. L. R. 537; Corrigan v. Schmidt, 126 Mo. 304, 28 S.W. 874; Yeomans v. Lepp, 167 Mo. 61, 66 S.W. 957; 26 R. C. L., sec. 357, p. 399. (5) The bid and purchase price paid for the lands in question is so inadequate and unrelated to the true value of said lands and improvements as to amount to a fraud in law. Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650; Ellis v. Powell, 117 S.W.2d 225; Lindsey v. St. Louis, 139 S.W.2d 906. (6) The deed by the Collector to the plaintiff for the lands in question is invalid for the reason that the defendants appeared in good faith at the office of the Collector and offered to pay the taxes thereon at a time before the statutory redemption period expired and were informed by said Collector that all taxes against said lands were paid. Sec. 9956-a, R. S. Mo., Laws 1933, p. 437; Hoge v. Hubb, 90 Mo. 489, 7 S.W. 443; Gould v. Sullivan, 84 Wis. 659, 54 N.W. 1014, 36 A. L. R. 955, 20 L. R. A. 487; Hampton v. McClannahan, 143 Mo. 151, 45 S.W. 297. (7) The sale and subsequent deed by the Collector to the plaintiff for the lands in question are invalid for the reason that, in addition to the inadequacy of the purchase price, there were other circumstances over which the defendants had no control and occurrences which tended to mislead the defendants as to the true facts, notwithstanding their efforts and diligence in the protection of their property rights. Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650; Guinan v. Donnell, 201 Mo. 173, 98 S.W. 478.

C. L. Shotwell for respondent.

(1) An action in ejectment is an action for possession of real estate, and only a tenant in possession and his landlord are proper parties thereto. Miller v. Boulware, 267 Mo 487. (2) The cross bill of appellants is really an action to determine and quiet title. There is a defect of parties defendant therein, the same having been raised by the answer of the respondent to said cross bill. This defect was caused by Carrie Broeker not being in court; the appearance of Paul S. Limerick as curator of the estate of Carrie Broeker, the person of unsound mind, was not sufficient to bring her into court. Therefore, she was not in court and a defect of parties defendant existed. Webb v. Hayden, 166 Mo. 39; Gibson v. Shull, 251 Mo. 480; Judson v. Walker, 155 Mo. 166. (3) The lack of authority in the curator to sue in his own name was properly raised by the answer to the cross bill which specifically challenged his authority. Clowers v. Railroad, 21 Mo.App. l. c. 216. (4) Said Carrie Broeker did not have a dower interest in this property, and the evidence so shows. Moore v. Hoffman, 327 Mo. 852, 39 S.W.2d 339; Falvey v. Hicks, 315 Mo. 442; Cave v. Wells, 319 Mo. 930. (5) The dower and quarantine right of said Carrie Broeker became barred by limitation in 1927, ten years after the death of her husband, and after that time her only interest in the property was her homestead right; that right did not include all the land, but only property of the value of fifteen hundred dollars ($ 1500.00). Sec. 608, R. S. 1929. (6) The statutes prescribe the manner of redeeming real estate, and if said Carrie Broeker had wished to redeem her portion of this land she could have done so only in the manner prescribed by the statutes. Expressio unius est exclusio alterius. Secs. 9956-a, 9956-b, Laws 1933, p. 437; State ex inf. v. Athletic Club, 261 Mo. l. c. 599. (7) The Jones-Munger Act is constitutional. State ex rel. v. Bader, 336 Mo. 259, 78 S.W.2d 835. (8) The burden was on appellants to prove the invalidity of this sale and the statutes prescribe the grounds for setting such sale aside. Appellants have not met that burden. Sec. 9960-b, Laws 1933, p. 442. (9) The right to tax is an attribute of sovereignty and the Legislature in its wisdom may curtail the power of the courts to set aside tax sales. Such acts of the Legislature are constitutional. Virginia Coal Co. v. Thomas, 97 Va. 527, 34 S.E. 486; Callanan v. Hurley, 93 U.S. 387; Gerke Brewing Co. v. St. Clair, 46 W.Va. 93, 33 S.E. 122; Kehoe v. Auditor General, 138 Mich. 586, 101 N.W. 809; Berkey v. Burchard, 119 Mich. 101, 77 N.W. 635; Phelps v. Meade, 41 Iowa 470; Smith v. Cleveland, 17 Wis. 573. (10) The notice of sale was sufficient to notify appellants and the description therein is valid. Pruitt v. Levee & Drainage District, 341 Mo. 120, 106 S.W.2d 467; Hector v. Harrell, 248 Mo. 166; Hiller v. Keaton, 236 Mo. 694; Sec. 9978, R. S. 1929. (11) The collector committed no error in selling this entire tract at one time, if he did so, for the following reasons: (a) There is no evidence before this court to show that the sale of a part of said property would have produced sufficient funds to pay the taxes then due and for which the property was being sold. (b) The deed, itself, is no evidence of the fact that this sale was en masse; and there is no showing that the collector abused his discretion. (c) Appellants took no action to apply for redress within a reasonable time. (d) There is no showing that respondent had notice of how this property was sold on November 8, 1934. Shelton v. Franklin, 224 Mo. l. c. 363; Culbertson v. Edwards, 243 Mo. 433. (12) Sales of land for taxes en masse are not set aside by the courts unless it is shown that injury thereby has resulted to the owner of the property, and unless the property owner shows by proper evidence that a sale of a part of the tract would have brought sufficient funds to pay the taxes on the entire tract. Until they make such showing, they have not shown that they have been damaged. (13) Under the laws of Missouri, taxes are a lien on land until paid for. When respondent purchased this property at tax sale he took it subject to all prior and subsequent taxes which were then a lien on it. Jaicks v. Oppenheimer, 264 Mo. 693; Mo. Real Estate & Loan Co. v. Burri, 202 Mo.App. 242; Excelsior Springs v. Henry, 99 Mo.App. 450. (14) In computing the value of real estate, the courts always take into consideration all incumbrances on the property at the time of the sale; thus respondent did pay, and will be deemed to have paid, $ 225.43, for this piece of property. Sec. 9957-c, Laws 1933, p. 440; Dougherty v. Gangloff, 239 Mo. l. c. 662; Shepperd v. Enright, 188 S.W. 186. (15) The sale of this property for taxes is not sufficient to shock the judicial conscience. Judge Cooley in his Work on Taxation (3 Ed.), page 959, states the rule tersely as follows: "The insignificance of the price as compared with the value of the land sold will not defeat a tax sale; for, if it should, the power to collect revenue by this method will be futile." Any other ruling would undermine the sovereignty of the State. Martin v. Castle, 193 Mo. l. c. 195; Dougherty v. Gangloff, 239 Mo. l. c. 662; Shepperd v. Enright, 188 S.W. 186; Rogers v. Dent, 292 Mo. 576; Walker v. Mills, 210 Mo. 684. (16) Whatever rights, if any, the appellants may have had were barred by their laches in asserting same. Roby v. Smith, 261 Mo. 192. (17) No privity exists between the two or three heirs that claim to have seen the probate court about this matter, the two who claim to have inquired about the taxes at the office of Collector, and the remaining heirs of said Charles Broeker, and if there are any grounds for setting aside this sale on account of what the Probate Judge and the Collector told said parties, that ground would not avail the remaining heirs, who were certainly not misled thereby, there being no evidence that the heirs who saw the probate judge and...