Daniel v. Mollett

• Decision Date: 11 June 1945
• Docket Number: 39320
• Parties: Fannie Daniel and C. G. Daniel, Jr., Executor of the Estate of C. G. Daniel, Sr., Deceased, v. J. E. Mollett, Lester H. McFarling and Elsie McFarling, His Wife, Appellants
• Court: Missouri Supreme Court

188 S.W.2d 54

354 Mo. 50

Fannie Daniel and C. G. Daniel, Jr., Executor of the Estate of C. G. Daniel, Sr., Deceased, v. J. E. Mollett, Lester H. McFarling and Elsie McFarling, His Wife, Appellants

No. 39320

Supreme Court of Missouri

June 11, 1945

Appeal from Pike Circuit Court; Hon. Theodore Bruere Judge.

Affirmed.

Don C. Carter for appellants.

(1) The court erred in holding that the tax deed is null and void and constituted a fraud upon the plaintiffs. Bussen Realty Co. v. Benson, 349 Mo. 58, 159 S.W.2d 813; Rudd v. Scott, 175 S.W.2d 774; Swain v Boeving, 175 S.W.2d 591; Heagarty v. Hawkins, 173 S.W.2d 923; Johnson v. McAboy, 169 S.W.2d 932; Kennen v. McFarling, 165 S.W.2d 681; Nichols v. Roorbach, 162 S.W.2d 274; Manhurin v. Tucker, 161 S.W.2d 423. (2) The court erred in awarding judgment against the defendants Mollett and McFarling, for rents and profits of said real estate from November 2, 1942, at $ 2 per acre, per annum. No evidence offered that defendants, Mollett and McFarling, took possession of said real estate on November 2, 1942.

Fry & Edwards and J. O. Barrow for respondents.

(1) The tax sale constituted a fraud in law upon the State and upon the owners of the land. The Jones-Munger tax law contemplates a sale for a consideration at least sufficient to pay the delinquent taxes, interest and charges. Heagerty v. Hawkins, 173 S.W.2d 923; Bussen Realty Co. v. Benson, 159 S.W.2d 813; Manhurin v. Tucker, 161 S.W.2d 423; Kennen v. McFarling, 165 S.W.2d 681; Swain v. Boeving, 175 S.W.2d 591; Rudd v. Scott, 175 S.W.2d 774; J.C. Nichols Inv. Co. v. Roorbach, 162 S.W.2d 274; Johnson v. McAboy, 169 S.W.2d 932. (2) The collector's deed is null and void for the reason that it merely recites that "said real estate after having been duly advertised was offered for sale," and said deed does not show affirmatively by a recital of facts that the land described therein was advertised for sale in the manner required by law. Yankee v. Thompson, 51 Mo. 234; Cook v. Farrah, 105 Mo. 492; Burden v. Taylor, 124 Mo. 12; Spurlock v. Allen, 49 Mo. 178; Smith v. Funk, 57 Mo. 239; Hubbard v. Gilpin, 57 Mo. 441. (3) Respondents were entitled to recover judgment for the fair cash rental value of the property since the date of the tax sale.

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

OPINION

BOHLING

Fannie Daniel and C. G. Daniel, Jr., as executor of the estate of C. G. Daniel, Sr., deceased, instituted this suit against J. E. Mollett, Lester H. McFarling and Elsie McFarling, his wife, to quiet title to 53 acres of land in Audrain county, Missouri; and to cancel a delinquent tax sale deed, and for damages. The court found for the plaintiffs, awarding damages on the basis of $ 2 per acre per annum until possession be restored. The real estate was sold under the Jones-Munger delinquent tax law (Laws 1933, p. 425 et seq.; Secs. 11108 et seq., R.S. 1939) at its third offering on November 2, 1942. Defendants bid the land in for $ 205. The taxes then due and payable amounted to $ 430.10. The trial court found the value of the land to be "in excess of $ 1060." The defendants have been before this court in a like role in the reported case of Kennen v. McFarling, 350 Mo. 180, 165 S.W. 2d 681, and the like case of De Tienne v. Mollett, 354 Mo. 166, 188 S.W.2d 954.

Defendants claim the land should be valued at $ 750 on the ground there was testimony that plaintiffs had agreed to sell it for $ 750 if they won the suit. While this was before the court for consideration, there was other evidence putting the value of the land at $ 1325 and as high as $ 1590. The court's finding of a value "in excess of $ 1060" is supported by the greater weight of the evidence of record.

Several cases have observed the Jones-Munger act contemplates that the bid at a tax sale thereunder should be sufficient to pay the delinquent taxes, interest, and charges where the reasonable value of real estate is greater than that amount. Bussen Realty Co. v. Benson (Banc), 349 Mo. 58, 66[6], 159 S.W. 2d 813, 817[5]; Mahurin v. Tucker (Mo.), 161 S.W. 2d 423[1]; Heagerty v. Hawkins (Mo.), 173 S.W. 2d 923, 928[7]. Consult Secs. 11127, 11129, 11131, R.S. 1939, among others. Section 11130 provides, in the event no bid equal to the delinquent taxes, interest, penalty, and costs be received at the first two offerings, that the land shall be sold at the third offering "to the highest bidder, and there shall be no period of redemption from such sales." Section 11131 makes it lawful for county courts to appoint a suitable person with discretionary authority to bid up to the sum of the taxes, penalties, interest, and costs at all sales where the provisions of Sec. 11130 are applicable "and to purchase at such sales all lands or lots necessary to protect all taxes due and owing and prevent their loss to the taxing authorities involved from inadequate bids. . . . Such person or persons so designated shall not be required to pay the amount bid on any such purchase but the collector's deed issuing on such purchase shall recite the delinquent taxes for which said lands or lots were sold, the amount due each respective taxing authority involved, and that the grantee in such deed or deeds holds title as trustee for the use and benefit of the fund or funds entitled to the payment of the taxes for which said lands or lots were sold." When lands thus bid in are sold, the law directs the application of any proceeds to the payment of costs incurred and the prorating of the balances to the funds entitled to receive the taxes.

The trial court considered the bid of $ 205 to...