Granger v. Barber
| Decision Date | 12 February 1951 |
| Docket Number | No. 1,No. 42073,42073,1 |
| Citation | 236 S.W.2d 293,361 Mo. 716 |
| Parties | GRANGER et al. v. BARBER et al |
| Court | Missouri Supreme Court |
Richard K. McPherson, Ralph Baird, Joplin, Attorneys for appellants.
Edward V. Sweeney, Monett, Attorney for Respondents, T. C. Kearley and Dorothy Kearley.
Sater & Monroe, Monett, Attorneys for Respondent, Lloyd Barber.
ASCHEMEYER, Commissioner.
This is a suit to cancel and set aside a tax deed conveying title to real estate located in the City of Aurora, Missouri, to defendant Lloyd Barber; to cancel and set aside a warranty deed of Barber conveying said property to defendants T. C. Kearley and Dorothy Kearley, his wife; to try and determine title to said property; and to adjudge that plaintiffs (appellants) are the owners thereof in fee simple subject to a life estate in Lee Kenner Stevenson. The trial court sustained separate motions of defendants (respondents) to dismiss the petition. Appellants refused to plead further and the court entered a judgment dismissing the cause. This was a dismissal with prejudice and constitutes a final judgment from which an appeal may be taken. Laws 1943, p. 385, Sec. 101; Mo.R.S.A. Sec. 847.101, Sec. 510.150, R.S.1949; Anderson v. Kansas City Baseball Club, Mo.Sup., 231 S.W.2d 170.
The property involved in this suit consists of two lots located in the City of Aurora. The petition alleged that appellants acquired title thereto by a quit claim deed in 1932 and that they are the owners thereof subject to life estate in Lee Kenner Stevenson; that respondent, Lloyd Barber, bought the property on November 7, 1939, for $69.42 at a tax sale held by the Collector of Revenue of the City of Aurora for delinquent taxes for the years 1933 to 1938 inclusive; that the collector executed and delivered to Barber a collector's deed which was recorded in the office of the Recorder of Deeds for Lawrence County, Missouri; that subsequently Barber conveyed the property by a warranty deed dated March 1, 1943, to respondents T. C. Kearley and Dorothy Kearley; that the warranty deed was recorded in Lawrence County; that the Collector of the City of Aurora purported to advertise said property for sale for the payment of taxes for certain years; that 'no bid was received at the first sale, re-advertised for second sale and no bid received; and was again re-advertised for sale for delinquent taxes' in the aggregate amount of $69.42 for specified years; and that on November 10, 1939, the collector did 'purport to sell said real estate avove described to the defendant Lloyd Barber, and executed and delivered to him the first above described deed.'
The petition then alleged that the collector's tax deed 'is illegal, void and invalid' for the following reasons: (1) that Sec. 11126, R.S.1939, Mo.R.S.A. Sec. 11126, Sec. 140.170, R.S.1949, required that the publication of the list of delinquent lands and notice of tax sale state separately for each year the amount of taxes, penalties, interest and costs due but that the collector failed to state such items separately for each year and stated the aggregate amount due for all years, and that by reason of these defects in the advertisement, the sale held thereunder was invalid; and (2) that the land, with improvements thereon, was reasonably worth $2500.00 so that the sale price of $69.42 was so grossly inadequate that it amounted to fraud.
The motions to dismiss attacked the sufficiency of the petition to entitle appellants to relief and also charged that the cause of action attempted to be stated was barred by Sec. 11177, R.S.1939, Mo.R.S.A. Sec. 11177, Sec. 140.590, R.S.1949, since 'more than three years has expired since the recording of the tax deed mentioned in plaintiffs' petition.'
The tax sale involved in this case was held under the provisions of the Jones-Munger Law, Sec. 11117ff, R.S.1939, Mo.R.S.A. Sec. 11117ff. Since the enactment of this law in 1933, sales of land for delinquent taxes have been by administractive rather than by judicial proceedings, as was formerly the case. Adams v. Smith, Mo.Sup., 232 S.W.2d 482, 486; Kennen v. McFarling, 350 Mo. 180, 165 S.W.2d 681. Real estate may be sold by the collector after the publication of prescribed notice, and it is not necessary to include the name of the owner in such publication. Secs. 11125, 11126, R.S.1939, Mo.R.S.A. Secs. 11125, 11126, Secs. 140.150 and 140.170, R.S.1949.
Sec. 11177 provides that any suit against 'the tax purchaser * * * for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes * * * shall be commenced within three years from the time of recording the tax deed, and not thereafter * * *.' While the order of the trial court sustaining the motions to dismiss does not state the reasons for the trial court's action, it is apparent that the trial court took the view that the petition showed upon its face that the action had been commenced more than three years after the tax deed was recorded so that it was barred by the special statute of limitations contained in Sec. 11177. Indeed, the only question presented by appellants' brief is whether this statute is effective to bar appellants' right of action.
There can be no doubt that the petition shows on its face that the suit was brought more than three years after the recording of the tax deed. While the date of recording is not fixed precisely by the petition, it is clear from its allegations that the recordation occurred sometime prior to March 1, 1943. Respondents' brief suggests that the tax deed was recorded on November 8, 1939. The instant suit was filed October 24, 1949. The application of the statute of limitations was properly raised by the motions to dismiss. DeVault v. Truman, 354 Mo. 1193, 194 S.W.2d 29, 32; Woodruff v. Shores, 354 Mo. 742, 190 S.W.2d 994, 166 A.L.R. 957.
Appellants argue that Sec. 11177 is not applicable and will not bar their suit because the tax deed 'is void on its face.' Appellants cite Smith v. H. D. Williams Cooperage Co., 100 Mo.App. 153, 73 S.W. 315, 318, which held a tax deed to be void which showed 'affirmatively upon its face that in making the sale the collector did not comply with section 189 of the act, which requires that the 'collector shall offer for sale publicly, separately, and in consecutive order, each tract of land, or town lot, or city lot.'' (Under Sec. 11128, R.S.1939, Mo.R.S.A. Sec. 11128, Sec. 140.200, R.S.1949, an analogous provision is directory only and 'a failure to comply therewith shall not of itself invalidate any sale.') Speaking of the three-year statute of limitations the court said: See also Bird v. Sellers, 122 Mo. 23, 26 S.W. 668.
The difficulty with appellants' position is that the tax deed is not before us and it was not before the trial court. The deed is not 'recited at length' in the petition nor is a copy thereof attached to the pleading as an exhibit. (Laws 1943, p. 353, Sec. 55; Mo.R.S.A. Sec. 847.55, Sec. 509.230, R.S.1949.) The allegations of the petition respecting the infirmities of the tax sale do not allege matters shown upon the face of the deed. One of the defects alleged concerns deficiencies in the publication or advertisement of the notice of sale. It is not alleged that these deficiencies appear upon the face of the tax deed. The other defect alleged is that the consideration paid for the conveyance was so grossly inadequate that it constituted a fraud. Obviously, the gross inadequacy of consideration would not be apparent from the face of the deed alone and the decisions of this Court holding that a tax deed will be set aside where the evidence shows a gross inadequacy of consideration are of no assistance to appellants. In their brief appellants argue other irregularities which they assert are apparent upon the face of the deed. W...
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...'chargeable with its own taxes, no matter who is the owner, nor in whose name it is or was assessed.' Sec. 137.170. Granger v. Barber, 361 Mo. 716, 236 S.W.2d 293, 296[4, 5], a suit attacking a tax sale and deed under the Jones-Munger act, Laws 1933, p. 425, held that tax sales under the pr......
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...to suits to try and determine title involving the cancellation of tax deeds issued under the Jones-Munger law, Granger v. Barber, Mo.Sup., 236 S.W.2d 293, 297; and observations to like effect have been made in other cases involving like tax deeds. Bussen Realty Co. v. Benson, 349 Mo. 58, 66......
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