Evarts v. Missouri Lumber and Mining Company
| Citation | 92 S.W. 372,193 Mo. 433 |
| Parties | HENRY E. EVARTS et al., Appellants, v. MISSOURI LUMBER AND MINING COMPANY |
| Decision Date | 22 February 1906 |
| Court | Missouri Supreme Court |
Appeal from Shannon Circuit Court. -- Hon. W. N. Evans, Judge.
Reversed and remanded (with directions).
J. W Chilton for appellants.
(1) The statute law of Missouri contemplates and intends that the payment of taxes due on land shall extinguish the tax lien and that a sale of such land through the fault of the collector for taxes which have been paid shall not deprive the owner of his land. R. S. 1899, secs. 9266, 9329; Hubert v. Pickler, 94 Mo. 387. (2) The existence of the tax debt is what creates the lien and gives jurisdiction to sell the land; so that if payment or tender of the taxes due be made, thenceforth the tax lien is discharged and the power to sell the land at all ends. Hoge v. Hubb, 94 Mo. 503; Harness v. Cravens, 126 Mo. 233; City of Aurora ex. rel. v. Lindsay, 146 Mo. 518; Black on Tax Titles (2. Ed.), sec. 156; McClure v. Logan, 59 Mo 234; Bennett v. Hunter, 19 Gratt. 100; Doe v. Bufford, 26 Wis. 194; Kingsworthy v. Austin, 23 Ark. 375. (3) There is no difference, so far as this question is concerned, between a tax lien and a mortgage lien. Payment of the amount due thereon extinguishes the lien and any sale thereafter is void and without the jurisdiction of the court, and passes no title. Harness v. Cravens, supra; Thornton v. Bank, 71 Mo. 233; Jackson v. Crafts, 18 Johns. 110; Kortright v. Cady, 21 N.Y. 343; Almstead v. Tarsney, 69 Mo. 399; Edwards v. Ins. and Loan Co., 21 Wend. 467. (4) And when taxes on land have been paid to the collector, the obtaining of a judgment against such land for such taxes by such collector or his tax attorney is a fraud upon the court, and such judgment is void. In the case at bar the conduct of the tax attorney was reprehensibly fraudulent, as shown by the evidence, and that of the collector was so sublimely stupid as together to call loudly for the intervention of a court of equity. The judgment of the court should therefore have been for plaintiffs on this ground if upon no other. Harness v. Cravens, supra; Hampton v. McClanahan, 143 Mo. 501; City of Aurora ex rel. v. Lindsay, supra. (5) A suit brought against a nonresident by order of publication wherein there is no personal appearance by defendant, must be brought against such defendant by his proper name. It will not be sufficient to sue him by initials only, unless defendant has, by some act of his own, authorized the name by his initials merely. Hence the court erred in refusing plaintiffs' instruction 5. Vincent v. Means, 184 Mo. 344; Spore v. Ozark Land Co., 186 Mo. 656; Gillingham v. Brown, 187 Mo. 181; Skelton v. Sackett, 91 Mo. 377; Singleton v. Turner, 151 Mo. 100; Steimann v. Stremple, 29 Mo.App. 484. It is the duty of the collector to sue the real owner as against the record owner of land, in tax suits, if he have notice of the real owner's ownership thereof. Vance v. Corrigan, 78 Mo. 94; State ex rel. v. Sack, 79 Mo. 661; Cowell v. Gray, 85 Mo. 169. And if the collector has notice of the claim and ownership of land on which he sues for taxes, but does not know claimant's correct name, he should either ascertain the owner's name or sue him as an unknown party, as provided in section 580, Revised Statutes 1889. Meyers v. McRay, 114 Mo. 377. A sheriff's deed is void and passes no title to the purchaser when founded on a judgment wherein the court failed to obtain jurisdiction over the person of the defendant, even though the suit be also against the record owner of the land. Meyers v. McRay, 114 Mo. 381. (6) The rule of caveat emptor applies in all its vigor to purchasers at tax sales. Black on Tax Titles (4 Ed.), pp. 53 and 68; Rowe v. Land & Cattle Co., 99 Mo.App. 158; Petring v. Land & Cattle Co., 85 S.W. 933.
John C. Brown for respondent.
(1) The fact that the taxes for which the land was sold had been paid does not invalidate respondent's sheriff's tax deed. Hill v. Sherwood, 96 Mo. 125; Jones v. Driskill, 94 Mo. 191; Gibbs v. Southern, 116 Mo. 218. (2) Appellant, Henry E. Evarts, is estopped from disputing the validity of the order of publication wherein he was notified as "H. E. Evarts." Mosely v. Reily, 126 Mo. 124; Turner v. Gregory, 151 Mo. 106. (3) Appellants having failed to place their deed on record before the tax suit was instituted were not necessary parties to that action. Vance v. Corrigan, 78 Mo. 94; State ex rel. v. Sack, 79 Mo. 661; Cowell v. Gray, 85 Mo. 169. (4) The judgment is for the right party and should be affirmed. Schmidt v. Neimeyer, 100 Mo. 209; Jones v. Driskill, 94 Mo. 191; Allen v. McCabe, 93 Mo. 138; Gibbs v. Southern, 116 Mo. 204; secs. 924, 9206, 9305, R. S. 1899; sec. 219, p. 1206, Wag. Stat. 1872; Laws 1872, p. 114; Bisp. Prin. of Eq. (2 Ed.), sec. 259.
This is an action under section 650, Revised Statutes 1899, to ascertain and declare the rights of the parties hereto to lot 3, and the west half of lots 1 and 2, and the east half of lot 4, of the northeast quarter of section 3, and the west half of lots 2, 3 and 4 of the northwest quarter of section 2, all in township 29, range 6 west, in Shannon county, Missouri. There was a judgment for the defendant in the trial court, and the plaintiffs appealed.
THE ISSUES.
The petition alleges the corporate capacity of the defendant, and that the plaintiffs own and claim the fee simple title to the land in controversy, and that the defendant claims an interest therein by virtue of a sheriff's deed purporting to convey the land to one A. E. McGlashen, made in 1896, for alleged delinquent taxes for the year 1892, and that the sheriff's deed, under the tax judgment, is null and void, because the judgment in the tax case was obtained by fraud, and because the court rendering the judgment had no jurisdiction to render the same. The petition further alleges that the plaintiffs have owned the land since 1885, and have paid the taxes thereon ever since then, including the year 1892, which last were paid in the year 1894; that prior to the payment thereof, in 1894, the land had been returned delinquent, by the collector; that in the year 1895 the collector employed one L. L. Munsell to bring suit to enforce the State's lien for back taxes, in Shannon county, and that when the collector delivered to Munsell the back tax book of said county, he noted thereon the fact of plaintiffs' payment of said delinquent taxes on said land, and cautioned Munsell not to bring the action against the plaintiffs' land, for the reason that all taxes had been duly paid thereon; that Munsell being so employed to bring the back tax suits, entered into an unlawful agreement with the publisher of a certain newspaper in Shannon county, to the effect that Munsell procured orders of publication in cases pending for the enforcement of taxes to be published in said newspaper, and that in consideration thereof the publisher of the newspaper agreed to pay Munsell one-half of all fees realized by him for publishing such notices. That in order to make money unlawfully for himself, and in pursuance of said unlawful agreement, and without letting the back tax book show the filing of a suit against the plaintiffs, Munsell fraudulently brought suit against the plaintiffs' land, for the taxes for the year 1892, and obtained a judgment for said taxes, and caused the land to be sold therefor; that plaintiffs were then, and are now, non-residents of the State of Missouri, and knew nothing of the tax suit, or of the sale under the judgment therein, until five months next before the beginning of this suit, and that the collector and tax attorney knew that the taxes for that year on this land had been paid, and knew that the plaintiffs owned the land, but never caused any process to be served on them, notifying them of the pendency of said suit; that the payment, by them, of the taxes, extinguished the lien of the State for taxes, and that the procurement of the judgment, in manner aforesaid, was a fraud upon the court, and that the judgment and sale were void, and passed no title to the purchaser.
The answer is a general denial, except an admission that the defendant claims title to the land.
The case made is this:
It was agreed that Peter Duffield, the patentee from the Government, is the common source of title, and the plaintiffs introduced a warranty deed from said Duffield to one John M. Stull, dated August 11, 1858, recorded February 12, 1859; also a deed from said Stull to Julius King and T. J. McLain, dated August 6, 1869, recorded August 20, 1869; also a quit-claim deed from said King to said McLain, dated March 10, 1869, recorded November 14, 1869; also an assignment by McLain to Washington Hyde, as assignee, dated May 27, 1876, recorded June 30, 1876; also a deed from said Hyde, as assignee and trustee of McLain, to Isaac Smith and Job J. Holliday, dated December 27, 1879, recorded January 10, 1880; also a quit-claim deed from said Smith to Holliday, dated January 9, 1880, recorded February 24, 1880; also a quit-claim deed from Holliday to Henry E. Evarts and Mary Evarts, dated July 17, 1885, and recorded April 7, 1900. Thereupon the plaintiffs rested.
The defendant then offered a sheriff's deed purporting to convey the interest of David Wilson, Job J. Holliday and H E. Evarts in the land to A. E. McGlashen, dated September 17, 1896, recorded September 17, 1896, and said deed recited a judgment for back taxes for the year 1892 against said land, amounting to $ 8.85, and a sale under said judgment by the sheriff to said McGlashen. The plaintiffs objected to the introduction of said deed because the court had no jurisdiction of the plaintiffs in this case, the defendants in that...
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