Collector of Revenue of Jackson County v. Parcels of Land Encumbered With Delinquent Tax Liens, Parcel No. 3-2170

• Citation: 212 S.W.2d 746,357 Mo. 1231
• Decision Date: 12 July 1948
• Docket Number: 40520
• Parties: Collector of Revenue of Jackson County, Missouri, and William Brant, Purchaser, v. Parcels of Land Encumbered with Delinquent Tax Liens, Parcel No. 3-2170, C. L. Flaugh, Owner, Appellant
• Court: United States State Supreme Court of Missouri

212 S.W.2d 746

357 Mo. 1231

Collector of Revenue of Jackson County, Missouri, and William Brant, Purchaser, v. Parcels of Land Encumbered with Delinquent Tax Liens, Parcel No. 3-2170, C. L. Flaugh, Owner, Appellant

No. 40520

Supreme Court of Missouri

July 12, 1948

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Affirmed.

Rufus Burrus for appellant.

(1) Judgment foreclosing the rights of landowner is void and bidder obtained no right to lands therein described. Sec 11165, R.S. 1939; Laws 1943, p. 1042; sec. 20. (2) The court should have accorded the landowner the right to have redeemed his property at any time before the confirmation of the sale. Section 28 and proceedings herein are unconstitutional and void and in violation of Amendment XIV, Section 1, of the Constitution of the United States, and in violation of Article I, Section 10, of the Constitution of Missouri, 1945. (3) The landowner in equity should have a right uncodnitionally, to redeem his property by paying the taxes and costs before confirmation. (4) The sale price was inadequate. (5) The landowner had a right to have the sale confirmed only upon the condition both of his lots were taken by the purchaser. Art. I, Sec. 10, Constitution of Missouri; Sec. 1, Amendment XIV, Constitution of United States; 61 C.J. 1113, sec. 1514; Spitcaufsky v. Hatten, 182 S.W.2d 86.

Nelson E. Johnson and George V. Aylward for respondent.

(1) The contention that part of the taxes are barred by limitation is refuted by the record herein. (2) The statute of limitations is not available as a defense because not pleaded by the appellant. Laws 1933, p. 370, sec. 40; State ex rel. Jones v. Nolte, 350 Mo. 271, 165 S.W.2d 632; Sanders v. Johnson, 315 Mo. 424, 287 S.W. 427; Davies v. Keiser, 297 Mo. 1, 246 S.W. 897. (3) In confirming the sale of the property in question to William R. Brant, the court acted in strict accordance with the provisions of the "Land Tax Collection Act" the constitutionality of which has been upheld. Section 28 and the proceedings here pursuant thereto, are not in violation of either the State or Federal Constitution. Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W.2d 86; Winona & St. Peter Land Co. v. Minnesota, 159 U.S. 526, 40 L.Ed. 247; Leigh v. Green, 193 U.S. 79, 48 L.Ed. 623. (4) The landowner had ample opportunity to redeem his property by paying his taxes before the foreclosure sale. Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W.2d 86. (5) The sale price was adequate. State ex rel. v. Webster Grove Sewer Dist. No. 1, 327 Mo. 594, 37 S.W.2d 905; Creighton v. Mo. Pac. Ry. Co., 229 Mo.App. 325, 66 S.W.2d 980. (6) The landowner had no right to have the sale confirmed conditioned on the purchase of both of his lots by the respondent. Land Tax Collection Act, Laws 1943, p. 1033, secs. 45, 8a, 14.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

This is a proceeding instituted by the County Collector of Jackson County, Missouri, to foreclose tax liens as authorized by the Land Tax Collection Act, Laws 1943, page 1031. Among the parcels of land included in this suit were lots 546 and 547, Fairmount (Resurvey of lot 283), Jackson County, Missouri. As to lot 546, the trial court did not approve the sale and that lot has only an indirect bearing on the issues in this case. Explanation will be made later in this opinion. Appellant, C. L. Flaugh, owner of the lots, did not appear in the proceedings until the question of the confirmation of the foreclosure sales was presented to the trial court. He then filed a motion which reads as follows:

"Comes now C. L. Flaugh, and states to the Court that on the 11th day of March, 1947, a sale was held under and by virtue of an order of this Court wherein the property described by the above serial number in Land Trust Suit No. 3, and more particularly described as follows, to-wit:

"Lot 547, FAIRMOUNT (Resurvey of Lot 283) was offered for sale.

"Your movant further states that there was no bidding at said sale for the above described tract except that bid by William E Brant for the sum of $ 158.51, which sum your movant represents and states to the Court is grossly inadequate. Your Movant further states to the Court that said property is reasonably worth the sum of $ 400.00.

" WHEREFORE, your movant prays the Court for an order disaffirming said sale so as to permit the movant herein to redeem said lands and to pay said taxes that have now accrued against said property."

The trial court, after hearing evidence, found the value of lot 547 to be $ 500.00 and indicated that if the bidder would raise his bid to that amount the sale would be approved. He did so and the sale was confirmed. The evidence as to the value of the lot fully justified the finding as made by the trial court. It will be noted that the value as fixed by the court was $ 100.00 more than the amount stated in the landowner's motion. The court placed a value of $ 1500 on lot number 546. The purchaser at the sale, the same person who had bid in lot 547, refused to raise his bid on this lot so the sale was disaffirmed. From the order confirming the sale as to lot 547 Flaugh appealed.

The first point in the brief reads as follows:

"Judgment foreclosing the rights of landowner is void and bidder obtained no right to lands therein described.

"Sec. 11165, R.S. Mo., 1939.

Sec. 20, Laws 1943, p. 1042."

We learn from appellant's argument in his brief and the sections of the statute cited that appellant claims the petition is fatally defective because it discloses that the statute of limitations had run against taxes for the years 1933 to 1939 inclusive. It is obvious that this contention cannot be sustained. Liens for taxes for the years 1933 to 1944 inclusive were sought to be foreclosed. The suit was filed on September 26, 1945. Taxes due for the years 1940 to 1944 were within the five years and therefore even if Sec. 11165, supra, were applicable the petition would not be void. There was no contention made by appellant in his motion or at the hearing that any taxes were barred because of the statute of limitations. Examining the petition we find a tax bill attached as an exhibit on which are the following notations as to the taxes due for the years 1933 to 1936 inclusive:

"Suit No. 21.05; Tract No. By Book and Page, 7-3149; Tax Year, 1933, 1934, 1935, 1936."

The same appears for the following years for which taxes were claimed to be due. A suit number was indicated for each year. In the column indicating costs accrued we find an item for "Clerks Fees" and also fees for "Suits Release." Without any contrary showing or evidence on the point we must hold that the petition indicates and shows suits had been filed for taxes for the years now claimed to be barred by limitations. Our conclusion is, that the petition does not disclose that the statute of limitations has run against any of the tax liens sought to be foreclosed. In view of this ruling it will not be necessary to pass upon the question presented by respondent as to the necessity of appellant pleading the statute of limitations.

Appellant says that his offer, made after the foreclosure sale, to redeem his land by paying all taxes and costs should have been accepted by the trial court. The trial court evidently followed the procedure prescribed by the Land Tax Collection Act, supra, in particular Sec's. 16 and 28 of that act. Sec. 16 provides in substance that any person having any interest in the land may redeem the same by paying to the...