Drainage Dist. No. 23 of New Madrid County v. Hetlage

• Decision Date: 01 March 1937
• Parties: DRAINAGE DISTRICT NUMBER 23 OF NEW MADRID COUNTY, MISSOURI, APPELLANT, v. FRED HETLAGE AND HAZEL HETLAGE, HIS WIFE, RESPONDENTS
• Court: Missouri Court of Appeals

102 S.W.2d 702

231 Mo.App. 355

DRAINAGE DISTRICT NUMBER 23 OF NEW MADRID COUNTY, MISSOURI, APPELLANT, v. FRED HETLAGE AND HAZEL HETLAGE, HIS WIFE, RESPONDENTS

Court of Appeals of Missouri, Springfield

March 1, 1937

Appeal from the Circuit Court of New Madrid County.--Hon. J. M Reeves, Judge.

AFFIRMED.

Judgment affirmed.

J. V Conran and R. F. Baynes for appellant.

Finch & Finch for respondents.

FULBRIGHT J. Allen, P. J., and Smith, J., concur.

OPINION

FULBRIGHT, J.

In order to better understand the issues in this case, the pleadings are set out at length. Omitting the formal parts, the petition and amended answer follow:

PETITION.

Plaintiff states that it is now and was at all times hereinafter mentioned, a corporation formed, organized, and existing under and by virtue of the laws of the State of Missouri, relative to Drainage Districts.

Plaintiff further states that on the 30th day of October, 1934, the following described real estate situated in New Madrid County, Missouri, to-wit:

South one-half (1/2) of Section Twenty-two (22), Township Twenty-four (24), Range Thirteen (13), and South one-half (1/2) of North one-half (1/2) of Section Twenty-two (22), Township Twenty-four (24), Range Thirteen (13), was within its boundaries and had an assessment thereon in favor of the plaintiff to the extent of $ 537.60 for the years of 1928, 1929, 1930, and 1931. That on said date said real estate sold under and by virtue of a judgment rendered in the Circuit Court of New Madrid County, Missouri, cause number 10247, on the 3rd day of August, 1934, in a certain cause wherein the State of Missouri at the relation and to the use of P. J. Stearns, Collector of Revenue for said County, was plaintiff, and Russell McBride, et al., were defendants, for state and county taxes for the years of 1928, 1929, 1930, and 1931. The same was sold to the Defendant Fred Hetlage for the price and sum of $ 2350, which amount, the said Fred Hetlage paid to the sheriff of New Madrid County, Missouri, and received from same a deed for said property.

Plaintiff further states that by reason of its assessment on said real estate, it has an interest in and to said real estate aforesaid, and an equity of redemption therein and does now tender and agree to pay to defendant Fred Hetlage the said sum of $ 2350, the amount said Fred Hetlage paid for said real estate and agrees to reimburse the said Fred Hetlage for any other proper charges and expenses that he has been to in improving, caring for, or protecting said real estate.

Plaintiff further states that the defendant Hazel Hetlage is the wife of defendant Fred Hetlage and for that reason is made a party defendant to this suit.

WHEREFORE, plaintiff prays that it may be permitted to redeem said real estate from said sale and that the title be divested from the said Fred Hetlage, and in this plaintiff, and for such orders and judgments as to the Court may seem meet and proper in the premises.

AMENDED ANSWER.

Now at this time comes defendants, leave of Court first had and obtained, and file this their amended answer to plaintiff's petition and for said amended answer admit that plaintiff is a corporation formed, organized and existing under and by virtue of Article II, Chapter 64, Revised Statutes of Missouri, 1929; that on the 3rd day of August, 1934, in cause number 10247, wherein the State of Missouri at the relation and to the use of P. J. Stearns, collector of the revenue of New Madrid County, Missouri, was plaintiff and Russell McBride and others were defendants, judgment was rendered in the Circuit Court of New Madrid County, Missouri, for State and county taxes for the years 1928, 1929, 1930, and 1931; that the property described in plaintiff's petition was advertised and sold for State and county taxes and purchased by the defendant, Fred Hetlage, at a sheriff's sale for the sum of Two Thousand, Three Hundred Fifty-two and 50/100 Dollars ($ 2,352.50), which amount the said defendant, Fred Hetlage, paid to the sheriff of New Madrid County, Missouri, and received a deed from the sheriff for said property; and defendants deny each and every other allegation in said petition contained.

Defendants further allege that since the date of said sale defendant, Fred Hetlage, has expended the sum of nine hundred seven and 62/100 dollars ($ 907.62) for taxes, penalties and fees due to Drainage District Number 12 of New Madrid County, Missouri, and Drainage District Number 23 of New Madrid County, Missouri, for the year of 1932; that he has expended the sum of one thousand four hundred sixty-eight and 80/100 dollars ($ 1,468.80) for drainage district taxes; that he has expended the further sum of one hundred seventy-five dollars ($ 175) to acquire quit-claim deed from parties not made parties to the suit for taxes and who had an interest in the land, and that defendant, Fred Hetlage, has expended the further sum of nine hundred ninety-eight and 36/100 dollars ($ 998.36) for clearing and slashing in connection with clearing the property purchased by defendant and in making repairs and improvements on said property.

Defendants further allege that in said cause number 10247, which was a suit for State and county taxes, the plaintiff was made a party defendant and was properly served in said suit by the sheriff delivering a copy of the petition and summons to the county clerk of New Madrid County, Missouri, and that in the judgment rendered in said cause the claim and lien of plaintiff for taxes on the premises described in plaintiff's petition for the years of 1928, 1929, 1930 and 1931 were extinguished, and the property was purchased by defendant, Fred Hetlage, at the said sheriff's sale, free and clear of any claim or lien of the plaintiff for taxes for the years of 1928, 1929, 1930 and 1931.

Defendants further allege that the plaintiff is a drainage district organized by the county court of New Madrid County, Missouri, under and by virtue of Article II, Chapter 64, Revised Statutes of Missouri, 1929; that the said plaintiff is a creature of the statute and has the powers conferred upon it by the said Article II, chapter 64, and amendments thereto, but cannot exercise powers other than those expressly conferred upon it by the said sections of the statute and those necessarily incident thereto and implied therefrom; that said sections of the statute do not provide that drainage districts organized thereunder shall have the power to redeem real estate sold for State and county taxes, and that no power is conferred by the statute on plaintiff or districts organized under Article II, chapter 64, to redeem sold land for State and county taxes.

Defendants further allege that by the terms of Article II, chapter 64, Revised Statutes of 1929, the county court of New Madrid County, Missouri, is authorized to levy and collect taxes on the lands within said district, to pay the principal and interest on bonds issued for the purpose of paying the cost of completion of the improvements of said district, and that the proceeds of any taxes so levied can be used only for the purpose of paying the principal and interest of outstanding and unpaid bonds, but for no other purpose; that there are, at this time, many outstanding bonds of said district unpaid, and defendants say that the county court of New Madrid County has no power or authority to expend any of the funds of said district raised by taxes on the lands of said district under its levy for interest and sinking-fund purposes; for any purpose save and except to retire bonds or pay interest on outstanding bonds; and defendants further aver that it is provided in said article and chapter aforesaid that the County Court Drainage District may levy and collect a tax to be used in maintaining, preserving, restoring, repairing and strengthening the drains, ditches, levees and other work of the district, but that said tax levied for such purpose can be used only for the purpose for which it is levied and for no other purpose, and defendants further aver that all the funds of said district have been raised by taxes on land in said district, levied for either the purpose of retiring bonds and paying interest thereon or maintaining the ditches and drains of said district, and that said district is not authorized to levy or collect funds to be used for the purpose of redeeming land sold for State and county purposes, and that the county court of New Madrid County, in charge of the operation of said district, has no power or authority to expend any of the funds of said district for the purpose of redeeming or attempting to redeem lands in said district sold for State and county taxes.

Defendants further allege that the county court of New Madrid county made no order prior to the institution of this suit, authorizing or attempting to authorize suit to be brought on behalf of said district for the purpose of redeeming the lands hereinbefore described from the sale thereof for State and county taxes, and made no order of record, either appropriating or attempting to appropriate any money of said district for the purpose of redeeming or attempting to redeem said lands from said tax sale, and defendants aver that this suit was brought without authority of said district and without authority to pledge the creditor of funds of said district to be used for the purpose of redeeming said land from said State and county tax sale.

WHEREFORE having fully answered, defendants pray that the court find that plaintiff is not entitled to redeem said lands and that said district has no right or authority to expend any of its funds for such purposes; that said district has no authority in law to redeem or attempt to redeem its said lands from sale for State and county...