Collier v. Goessling

• Decision Date: 17 March 1908
• Docket Number: 1,738.
• Citation: 160 F. 604
• Parties: COLLIER v. GOESSLING.
• Court: U.S. Court of Appeals — Sixth Circuit

160 F. 604

COLLIER v. GOESSLING.

No. 1,738.

United States Court of Appeals, Sixth Circuit.

March 17, 1908

A. W Biggs, for appellant.

J. P Holt, for appellee.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

This bill was filed in a chancery court of the state, and duly removed to the court below upon diversity of citizenship.The object of the bill is to remove a tax deed as a cloud upon the title to lots Nos. 16 and 17 of the Trezevant subdivision of land in Shelby county, Tenn., and to enjoin the execution of a writ of possession, issued by the state circuit court to put the holder of the tax title into possession.An answer and cross-bill was filed by the defendant, and an amended bill and answer to the defendant's cross-bill was filed by the complainant.These pleadings put in issue the validity of the tax deed under which the defendant claimed, and the right of the complainant to maintain any suit to avoid the tax assessments, sale, or deed.Upon a final hearing the court below dismissed the bill; the decision, as indicated by the opinion, going wholly upon the ground that more than three years had elapsed between the tax sale and the filing of the bill.

1.It is useless to go into details about the title of the complainant.He had and has now, at least, such an equitable interest as to entitle him to maintain a bill to clear away a cloud and to enjoin a writ dispossessing him or those claiming under or through him.The lots were inclosed but vacant.That there was an existing possession by Collier, or those in privity with him, is not put in issue by the answer and is in effect confessed by the suing out of a writ of possession from the state circuit court, as well as by the prayer for such a writ included in the defendant's cross-bill.

2.Laying aside all questions as to the validity of the original assessment for indefiniteness of description or because assessed to one not the owner, as well as the question as to whether as a precedent to a sale of land for taxes a distress warrant must not issue and a return be made of no personal estate, we shall deal only with the validity of the 'list' which the trustee is required to file after a sale for delinquent taxes, which is the basis for any title obtained by a purchaser at a tax sale.Under the assessment law in force in Tennessee, the county trustee makes public sale of lands subject to delinquent taxes, and is required to strike off to the State Treasurer all lands or lots so sold when the full amount of taxes, penalties, and costs, etc., are not bid at the sale by some private person, and that he shall then file with the clerk of the circuit court of his county a 'certified list of the lands so struck of,''specifying the days of sale, the amounts of the respective taxes for which said sale was made, and each item of cost thereof. ' This 'list,'the act declares, shall operate to 'vest title' in the Treasurer for the use of the state as fully as a conveyance.It is also provided that the clerk may sell privately to any person who will pay the taxes due upon the lands so bid off, and that such purchaser shall take the state's title subject to every right of redemption accorded by law to the owner, and that when the redemption period expires the clerk shall make deed to such purchaser, and that the circuit court shall at his demand issue a writ to put him in possession.

The lots involved were sold by the county trusteeJuly 5, 1900, and struck off to the Treasurer of the state for the use of the state.The period for redemption extended to July 5, 1902.On July 3, 1902, the clerk sold these lots to the appellee, and on July 10, 1902, made him a conveyance according to the statutory form.Nearly two years after this, appellee applied for a writ of possession, and this writ was in the hands of the sheriff when this bill was filed in June, 1904.

Section 66 of the act of 1899, p. 1143, c. 435, provides that this conveyance 'shall be an assurance of perfect title to the purchaser of said land; no such conveyance shall be invalidated by any court, except by proof that the land was not liable to sale for taxes, or that the taxes for which said land was sold have been paid before said sale, and if any part of the taxes for which said land was sold is illegal, or not chargeable on it, but a part is chargeable, that shall not affect the sale, nor invalidate the conveyance thereunder, unless it appears that before sale the amount legally chargeable on the land was paid or tendered to the county trustee, and no other objection, either in form or substance to the sale, or the title thereunder, shall avail in any controversy involving them; and no suit shall be commenced in any court of this state to invalidate any tax title to land after three years from the time said land was sold for taxes, except in case of persons under disability, who shall have one year in which to bring suit after such disability is removed, nor until the party suing shall have paid or tendered to the clerk of the court in which the suit is brought the amount of the bid, and all taxes subsequently accrued, with interest and charges as herein provided.A writ of possession shall, upon application of the purchaser included in this section, be ordered by the court to which the tax sale has been certified.'

The objection to this title which we deem it necessary to consider is that the 'list' of lands struck off to the state and filed with the clerk of the circuit court was not made in compliance with the positive requirements of the act in that regard.The 'list' which included the lots in question did not 'specify the amount of the respective taxes for which said sale was made' nor show 'each item of cost thereof.'Opposite a description of these lots in a column at the top of which are the words and figures, 'State, county and special taxes,''103 on $100.'Then appear the figures '1236.'There is a ruled perpendicular line between figures '1' and '2' and another between '2' and '36.'There is, however, no dollar mark at the top of the column, and nothing to indicate whether '1236' stands for dollars or cents.Neither is there any separation of the tax due the state from that due the county nor the amount of any 'special tax' tax from either.To the right of the column in which occur these figures are ruled columns, one headed with the words 'Interest from February 1, 189-- ,' another headed 'Clerk's Commissions, etc.,' another 'Penalty,' and a fourth and last headed 'Total tax, costs, etc.,' but there are no figures extended in any of these columns.

Under another column headed 'Remarks,' there occurs 'Sold to state July 5, 1900,' and under another headed 'When and by whom paid' is the entry 'Sold July 3, 1902, W. F. Goessling $34.85 Sub. R. Deed Delivered July 14, 1902.'

Identical provisions in the assessment act of 1897 were constructed by the Tennessee Supreme Court in the cases styled 'Tax Title Cases,'105 Tenn. 245, 58 S.W. 259, and a clerk's deed conveying land, struck off by the trustee to the state, was held void, because the 'list' filed by the trustee with the clerk of the circuit court of his county had not been 'certified' as the act required.In reference to the provision in section 71 of the act of 1897, p. 37, c. 1, which is identical with that in section 66 of the act of 1899, that the clerk's deed should be an 'assurance of perfect title to the purchaser of said land, and no such conveyance shall be invalidated in any court, except by proof that the land was not liable to sale for taxes, or that the taxes for which the land was sold have been paid before said sale,' the Tennessee court said that this did not operate to close the door of investigation, and that that provision did not apply to a deed which the clerk was without authority to make.'Behind it,' said the court, 'must be the power to execute before it can have the efficacy now claimed for it. ''It is left scope enough without embracing within it a conveyance which the clerk was without authority to make. ' Construing the act as requiring the trustee to file a 'certified list' of lands struck off to the state, and that a list not certified did not operate to vest any title in the state, the court held that the clerk had no power to convey title where the state had none, and that his deed was impeachable and void.In Condon v. Galbraith,106 Tenn. 14, 58 S.W. 916, the Tax Title Cases were followed, and a tax deed to a purchaser from the state held to pass no title where the trustee had neglected to certify the list filed by him.It was also held that the circuit court had no jurisdiction under the act of 1899, c. 435, to confirm the title of a purchaser at tax sales, and to award writs of possession to such purchasers, unless the required list had been duly certified.In Hamilton v. Brownsville Gas Light Co. et al.,115 Tenn. 50, 154, 90 S.W. 159, the same court held that the list of sales by the trustee, furnished to the clerk of the circuit court, should be equally as specific and definite in showing the amount of taxes in dollars and cents, as well as each item of costs and penalties in dollars and cents, as would be required to make a valid assessment, and the lists failing to show specifically and definitely the amount of each item of taxes, costs, and penalties, the lists will be insufficient and invalid to divest title out of the owner of the property, and to vest it in the state, or in the purchaser from the state.Among other things the court in the case last cited, said:

'Without passing upon the other assignments, we are of opinion that the sale to the oil company by the clerk of the circuit court was without authority, invalid, and void, and conferred no title

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