Gibbs v. Southern
| Decision Date | 24 May 1893 |
| Citation | 22 S.W. 713,116 Mo. 204 |
| Parties | Gibbs, Appellant, v. Southern |
| Court | Missouri Supreme Court |
Appeal from Barry Circuit Court. -- Hon. W. D. Hubbard, Judge.
Affirmed.
Norman Gibbs for appellant.
(1) Proceedings to collect taxes are in invitum and against common right and are limited by the constitutional provisions thereon and must have the support of the constitutional power to tax. (2) A tax levied without a valid assessment is void. (3) It was error for the trial court to exclude the "assessment books," etc. Laws 1872, sec. 212 (211) p. 127; Huber v. Pickler, 94 Mo. 386; McClanahan v. West, 100 Mo. 321. (4) The error in the petition in the tax suit, reciting that Eli W. Bower was collector is fatal to the judgment therein.
George Hubbert for respondent.
(1) A suit in a circuit court to enforce the lien of the state for taxes is precisely upon the same footing with other cases involving the exercise of such court's jurisdiction and power. Allen v. Ray, 96 Mo. 542; Hill v Sherwood, 96 Mo. 125; Elting v. Gould, 96 Mo 535; Jones v. Driskell, 94 Mo. 190; Millner v Shipley, 94 Mo. 106; Allen v. McCabe, 93 Mo. 138; Brown v. Walker, 85 Mo. 262; Gray v. Bowles, 74 Mo. 419; Wellshear v. Kelley, 69 Mo. 343. Nor is this application of the general principle to actions for taxes peculiar to this state. 1 Black on Judgments, section 247. (2) Manifest clerical errors in writing the name of the defendant in lieu of that of the relator in the first section of the body of the tax suit petition, and in writing the word "collector" in lieu of the collector's surname, were properly treated by the circuit court, in this and in the original case, as of no moment. Such errors must be disregarded, even if the attack were made directly upon the tax judgment, whether we have reference to our statute of jeofails or the general principles of interpretation. 2 Wagner's Statutes, sec. 19 p. 1026. Agan v. Shannon, 103 Mo. 661. (3) The defective allegations in regard to the preparation of tax books, etc., are not open to question in this case. Precisely the same form of petition was held good in Wellshear v. Kelley, 69 Mo. 343. (4) The court did not err in refusing to admit in evidence the revenue records in the county clerk's office. The act of 1877 expressly repealed acts inconsistent with it.
This is an action of ejectment for eighty acres of land, the south half of the southeast quarter of section four (4), in township number twenty-one, range twenty-five, in Barry county, Missouri. Ouster was laid on the thirtieth day of April, 1888, and damages claimed in the sum of $ 100. The rents and profits were alleged to be of monthly value of $ 10. The defendant pleaded a general denial and adverse possession for ten years, to which a general reply was filed. The cause was tried at the October term, 1889. A jury was waived.
Plaintiff's documentary evidence consisted of a patent from the United States to Eli W. Bower, dated June 10, 1869, and a quitclaim deed from Bower to plaintiff of date February 24, 1888, recorded August 16, 1888, consideration $ 400. Defendant admitted his possession. Rents were shown to be of the value of $ 30 a year.
The defendant, at the close of the plaintiff's case, offered in evidence the following sheriff's deed, purporting to convey to F. S. Johnson the title of Eli Bower.
SHERIFF'S DEED.
"To all to whom these presents shall come:
I, Andrew J. Hopkins, sheriff of the county of Barry, state of Missouri, send greeting:
Whereas, on the twentieth day of March, A. D. 1878, judgment was rendered in the circuit court in the county of Barry, state of Missouri, in favor of the state of Missouri, at the relation and to the use of J. W. Lecompte, collector of the revenue of Barry county, in the state of Missouri, and against Eli W. Bower for the sum of thirty-three and eleven one hundredths dollars, for certain delinquent, state, county and special taxes and interest, as hereinafter set forth, assessed and found by said court to be due and unpaid upon the following described real estate, viz:
TRACT NO.
tion or town.
West one-half, southeast one-fourth
1.
and southeast one-fourth, southeast
4
21
25
one-fourth and southwest one-fourth.
And that taxes and interest found due upon said real estate, and the years for which the same were assessed, are upon each of the above described tracts as follows, viz:
Amount of taxes and interest for
TRACT NO.
bered tracts.
Year 1870, $ 4.40; year 1871, $ 5.90;
year 1872, $ 4.86
$ 15 16
1.
Year 1873, $ 5.07; year 1874, $ 5.03;
year 1875, $ 4.33
Year 1876, $ 3.52
3 52
And also certain costs which have been taxed the sum of $ 17.71 which said sums of taxes, interests and costs were declared by said court to be a lien in favor of the state of Missouri, upon the above described tracts of real estate.
And, whereas, it was decreed by said court that the lien of the state of Missouri upon the above described tracts of real estate, or so much thereof as may be necessary to satisfy such judgment, interest and costs, be sold according to law; upon which judgment a special execution and order of sale was issued from the clerk's office of said court, in favor of the state of Missouri, to the use of the said collector and against the said Eil W. Bower, dated the twenty-third day of May, A. D. 1878, directed to the sheriff of the county of Barry, and directing said sheriff to sell said real estate to satisfy said judgment, interests and costs, and the same was to me delivered on the twenty-third day of May, A. D. 1878, by virtue of which said execution, I, the said sheriff, did, on the twenty-seventh day of June, A. D. 1878, levy upon and seize the above described real estate, situate in my said county; and having, previously to the day of sale hereinafter mentioned, given at least twenty days' notice of the time and place of the sale and of the real estate to be sold, and where situated, as the law directs, by advertisement in the Valley Press, a newspaper published in my said county, by virtue of which said execution and notice, I did, on the thirteenth day of September, A. D. 1878, between the hours of nine in the forenoon and five in the afternoon of that day, agreeably to said notice, at the courthouse door in my said county of Barry, and during the session of the circuit court in said county, at the September term thereof, A. D. 1878, expose to sale at public auction for ready money, the above described real estate, and F. S. Johnson being the highest bidder for the following described real estate, viz: South one-half of southeast one-fourth, section four (4), township twenty-one (21), range twenty-five (25), situate in the county of Barry and state of Missouri, for the price and sum of $ 10; the said last above described tracts were stricken off and sold to the said F. S. Johnson for the sum bid therefor by him as above set forth. Now, therefore, in consideration of the premises, and of the sum of $ 10 to me, the said sheriff, in hand paid by the said F. S. Johnson, the receipt whereof I do hereby acknowledge, and by virtue of the authority in me vested by law, I, Andrew J. Hopkins, sheriff as aforesaid, do hereby assign, transfer and convey to the said F. S. Johnson all of the above described real estate, so stricken off and sold to him, that I might sell, as sheriff as aforesaid, by virtue of the aforesaid judgment, execution and notice.
To have and to hold the right, title, interest and estate hereby conveyed unto the said F. S. Johnson his heirs and assigns, forever, with all the rights and appurtenances thereto belonging.
In witness whereof, I. Andrew J. Hopkins, sheriff as aforesaid, have hereunto set my hand and seal, this fourteenth day of September, 1878.
ss
In the circuit court of Barry county, Missouri, September term, A. D. 1878.
Be it remembered, that on this fourteenth day of September, in the year of our Lord, 1878, before the Hon. W. F. Geiger, judge of the circuit in the county aforesaid, came into open court, Andrew J. Hopkins, personally known to the said judge to be the same person whose name is subscribed to the foregoing instrument of writing, as having executed the same as sheriff, and also known to be the sheriff of the county of Barry aforesaid, and then and there, in open court, before the said judge, acknowledge the said instrument to be his act and deed, for the purposes therein mentioned, this certificate of said acknowledgment being ordered by said court to be endorsed by the clerk on this deed.
In testimony whereof, I, Michael Horine, clerk of our said court, have hereunto set my hand and affixed the seal of our said court. Done at office in Cassville, in the county aforesaid.
[L. S.]
Michael Horine, Clerk.
Filed for record at 4 o'clock P. M., September 14, 1878.
Michael Horine, Recorder.
Per R. R. McGuire, Deputy.
To the introduction of this deed plaintiff objected, for the following reasons: First. That there is no valid judgment to support said sheriff's deed. Second. That there was no assessment of lands in the county of Barry in the state of Missouri, in, or for any of the years named in said deed, and for the taxes for which years said land was pretended to be sold by said sheriff. Third . That the court rendering the pretended judgment under which said sheriff's sale purported to be made, had no jurisdiction of the subject-matter of the pretended suit, nor of the person of the defendant named in said tax suit. Which were overruled by the court, and the deed...
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