Contrare v. Cirese
| Citation | 336 S.W.2d 485 |
| Decision Date | 13 June 1960 |
| Docket Number | No. 1,No. 47712,47712,1 |
| Parties | Mary CONTRARE, Respondent, v. Joseph C. CIRESE, Appellant |
| Court | United States State Supreme Court of Missouri |
J. K. Owens, Kansas City, for appellant.
Frank W. Aylward, James P. Aylward, Jr., George V. Aylward, William B. Teasdale, Kansas City, for respondent.
Action in equity to quiet and determine title to described real estate in Jackson County. The trial court granted the relief prayed and defendant has appealed.
Plaintiff specifically sought to vacate and set aside a tax sale, the order and judgment of the court approving it and the sheriff's deed executed pursuant thereto. The action purports to be a direct attack upon the order and judgment of the court and the sheriff's deed thereunder on the ground of accident, mistake and constructive fraud in that there was no appraisement of the property sold and, therefore, no compliance with the pre-requisites of the Land Tax Collection Act, particularly Sec. 141.580(1) RSMo 1949, V.A.M.S., in that the court heard no evidence as to the value of the particular property sold, because the appraiser who testified before the court at the time of the confirmation did not in fact appraise the property, but due to accident and mistake with reference to the legal description, he viewed and appraised the adjacent property and testified with reference thereto; and that the plaintiff's property had a value in excess of $4,000 and was sold for $200.10 to her damage. Defendant by answer denied that plaintiff had any right, title or interest in the property and alleged that he was the owner thereof and entitled to possession.
Appellant's brief contains no statement of the facts, but reviews only the allegations of the pleadings, certain admissions, the contentions of the respective parties and with some argument. Such a statement is not a compliance with Supreme Court Rule 1.08(b, c), 42 V.A.M.S. '59 pocket part, page 3. 1
The property involved was known and numbered as 522 Delaware Street, in Kansas City, Missouri, however, the tax proceedings referred to it by its legal description, to wit: Lot 9, Kray's Addition, a Subdivision in Kansas City, Jackson County, Missouri, and the north 10 feet, 4 1/2 inches of Lot 3, J. Rivards Addition.
The property was sold in 1948 for delinquent state and county taxes for 1942 and 1944. It is admitted that no city taxes were then due. The record shows that the suit to foreclose the tax lien under the Land Tax Collection Act was instituted on May 29, 1947, and default judgment was entered November 7, 1947. Thereafter, the property was offered for sale on June 14, 1948, to the highest bidder and sold to appellant Joseph C. Cirese for $200.10. The amount of the bid was in excess of $192.05, which was the amount of the state and county taxes, interest, penalties, attorney fees and costs. The sheriff's report of sale was filed September 7, 1948, and the sheriff's deed dated October 30, 1948 was thereafter executed and delivered to appellant and recorded on December 15, 1948.
Respondent had acquired the property by deed from Oscar Flensberg and Effie Flensberg on June 22, 1944, and entered into possession thereof and remained in possession, until the property was condemned and taken by the city in a condemnation proceeding for highway purposes, the Sixth Street Expressway, in 1953. Her attorney handled the original purchase transaction for her and she thought he had had her deed recorded. When she bought the property in 1944, there were no outstanding taxes, or at least that is what she thought. She testified that she had paid all taxes for 1944 to 1948. She first learned of appellant's claim to the property in the latter part of 1948, or the first part of 1949. Prior to that time she had received no actual notice of any of the proceedings to foreclose the lien for delinquent taxes, or of the sale and approval thereof and the execution of a deed to appellant. Respondent's deed was not recorded until February 21, 1949. When respondent learned of the tax sale and deed to appellant, she contacted him at once and offered to pay him the money he had expended and tendered him the full amount of the purchase price, plus interest and asked for a quitclaim deed, but appellant refused the offer and her request. She testified that she was still ready, willing and able to pay the $200.10 and interest to appellant.
The present action was instituted April 22, 1949. This was within the time subsequently fixed by Section 141.610 RSMo 1949, Laws 1949, p. 602, V.A.M.S. The cause was tried on September 23, 1958, and on October 28, 1958, judgment was entered for plaintiff granting the relief prayed.
Respondent's witness, Hansel Compton, the appraiser for the 'Land Trust' during 1947 and 1948, appraised property around Fifth and Delaware and, when he was directed to appraise the property in question here, he mistakenly appraised the building at 520 Delaware and did not appraise the property at 522 Delaware. He testified as to how and why the mistake occurred, as follows: Wnen his mistake was discovered, he went back to reappraise the described property, but the building at 522 Delaware had been torn down. He had appraised the north building instead of the south one. The one he appraised had a basement according to information he received from a tenant, but he didn't go down into the basement. He did not file an amended appraisement sheet when he discovered his error, it was then too late. This witness admitted that he had testified at the time the sale was confirmed, but said he had been given a legal description and he testified what the property he appraised was worth, but he had not appraised the property at 522 Delaware, the south property. The property he appraised was the north one of two units. It was on the north side of Missouri Avenue, the first, or furtherest one, on the north.
The records from the assessor's office, concerning the property at 522 Delaware Street, showed that it consisted of a two story building containing apartments and a storeroom. The lot had a total of 2040 square feet of area. The outside walls of the building were brick, but with pine flooring and a flat roof, and it had a reproduction cost of $13,612. The building had a total of ten rooms, the foundation was of stone and there was no basement. There was also evidence that 'there were 4956 [sic] square feet in the building.'
Respondent testified that the fair market value of the property in June and September 1948 was $6,000, or more; and that she had spent more than $2,000 in improvements in 1948 or 1949. Another witness, a real estate broker testified that she appraised the property in January 1953 and fixed its fair market value at $8,500. She had also inspected the same property in the spring of 1949 before it was improved and she then fixed its value at $6,500. In the condemnation case, wherein the property was taken for public purposes as a part of the Sixth Street Expressway, pursuant to Kansas City Ordinance No. 15945, passed September 12, 1952, a jury fixed the amount of compensation for the taking of the property at $5,250. Respondent had promptly asserted her right to the proceeds of the award in that case and was contesting appellant's claim thereto.
Defendant's evidence tended to show that, during the tax lien foreclosure proceedings, two notices were sent to the last known address of Oscar J. Flensburg, 541 Delaware Street, Kansas City, Missouri. These letters were not returned. The first notice or letter was in addition to the notice by publication and the second was to the effect that the property would be sold for county taxes on June 14, 1948.
The trial court found 'that the appraiser appointed by the trial court prior to the confirmation of the sheriff's sale mistakenly viewed the property adjoining the property in question, so that the trial court upon confirmation of the sale had no appraisal before it; that said real estate was sold for a grossly inadequate price of $200.00 when said property was worth more than $5000.00 at the time, which testimony was uncontradicted.' The court ordered and decreed 'that the deed made and executed by the Sheriff of Jackson County, Missouri, dated the 30 day of October, 1948, recorded in Book B4235 at page 729, conveying to the defendant J. C. Cirese, the premises in the petition described * * * was and is fraudulent and void as against Mary Contrare, and that the said Mary Contrare is the owner in fee simple and has all of the right, title and interest vested in her in and to the lands above described * * *.'
Under points and authorities appellant says: 'The Court was without jurisdiction to set aside the deed which was based on a valid judgment issued under the Land Tax Law of Missouri.' The assignment does not comply with Supreme Court Rule 1.08(a)(3) or 1.08(d), 2 in that it does not show 'what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous.' We can only look to appellant's printed argument in an effort to determine what was intended.
Appellant argues that the circuit court 'had judisdiction under the judgment in the original tax case'; that when that court rendered a decision affirming the sale of the mentioned property for taxes the sale was 'as...
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