Gregg v. Jesberg

• Decision Date: 13 December 1892
• Citation: 20 S.W. 652,113 Mo. 34
• Parties: Gregg, Appellant, v. Jesberg et al
• Court: Missouri Supreme Court

20 S.W. 652

113 Mo. 34

Gregg, Appellant, v. Jesberg et al

Supreme Court of Missouri, Second Division

December 13, 1892

Appeal from Buchanan Circuit Court.--Hon. O. M. Spencer, Judge.

Reversed and remanded.

Porter & Woodson for appellant.

(1) The deed is void because of its failure to recite that the deed was "publicly" made. Sullivan v. Donnell, 90 Mo. 278; Bingham v. Birmingham, 103 Mo. 345; Pitkin v. Reibel, 104 Mo. 505. (2) The court will observe that the city tax deeds offered in evidence in this case are almost literal copies of the form prescribed by section 1372, of the Revised Statutes of Missouri for 1889. "The recitals in the deed need not be in the exact order in which they appear in the form; nor need they be in the same words." Sullivan v. Donnell, 90 Mo. 283. (3) If the court was right in excluding the tax deeds offered in evidence and declared the law correctly in holding that said deed was void on its face, then instruction number 2 asked by plaintiff, should have been given, and the jury allowed to pass upon the second count of plaintiff's petition under the testimony of George C. Crowther. Sullivan v. Donnell, 90 Mo. 278; Bingham v Birmingham, 103 Mo. 345, and cases cited; Pitkin v Reibel, 104 Mo. 505; Revised Statutes of Missouri, 1889, sec. 1373.

Hall & Pike for respondent.

(1) The tax deed is void on its face, because the sale therein recited was made without authority of law. The collector must begin his sale at ten o'clock in the forenoon of the first Monday in November and continue from day to day, etc., as long as there are bidders or until the taxes are all paid. Revised Statutes, 1879, sec. 4731; Sullivan v. Donnell, 90 Mo. 283. (2) The validity of the adjourned sale depends upon two things: First, a legal sale must be begun in November; second, the adjourned sale must be legally connected with it. In this case that connection is wanting. In support of this point see: Large v. Fisher, 49 Mo. 307, and cases cited, 309; Yankee v. Thompson, 51 Mo. 234; Pitkin v. Reibel, 104 Mo. 505. (3) The lot was not assessed in the name of the owner, but was assessed in the name of a person who was not owner or occupant. Section 4705, Revised Statutes, 1879, enables the assessor to be absolutely correct in every ingredient of description. It indicates that the assessment must be made in the name of the owner, and the description otherwise must be as accurate as a civil engineer can make it. The assessment was therefore void. Burroughs on Taxation, 203; Abbott v. Lindenbower, 42 Mo. 162, and 46 Mo. 291; Hume v. Wainscott, 46 Mo. 145; Hubbard v. Gilpin, 57 Mo. 441; Ewart v. Hayter, 76 Mo. 134; Gaines v. Fender, 82 Mo. 508; Pearce v. Tittsworth, 88 Mo. 635; State ex rel. v. Railroad, 82 Mo. 684; Railroad v. Negrotto, 40 F. 428; Tracy v. Reed, 38 F. 69; Marx v. Hawthorne, 30 F. 579; Cooley on Constitutional Limitations [6 Ed.] 453, 540, note; Guffy v. O'Reilly, 88 Mo. 418. (4) The purchaser is not entitled to reimbursement; the statute authorizing it presupposes that a valid tax has been levied on the property.

OPINION

Gantt, P. J.

This is an action of ejectment for the recovery of the possession of the east twenty feet of the west ninety-one and two-thirds feet of lots 11 and 12, block 43, Robidoux's addition to the city of St. Joseph.

Plaintiff's claim is founded upon two tax deeds, one of which is an amendment of the other, executed by the collector of city taxes.

In a second count, the plaintiff alleges he purchased the land for delinquent taxes for the years 1881, 1884, 1885 and 1886, and, if his deed is adjudged insufficient, he asks judgment for the amount of taxes paid by him with interest, penalties and costs.

The answer is a general denial.

The plaintiff offered in evidence the following city tax deed:

"Know all men by these presents, that, whereas, the following described real property, viz., east twenty feet of the west ninety-one and two-thirds feet of lots eleven and twelve (11 and 12), block forty-three (43), Robidoux addition, an addition to the city of St. Joseph, Missouri situated in the city of St. Joseph, in the county of Buchanan and state of Missouri, was subject to taxation for the years 1881, 1884, 1885, 1886; and, whereas the taxes assessed upon the said real property for the years aforesaid remained due and unpaid at the date of the sale hereinafter mentioned; and, whereas the city collector of said city of St. Joseph did, on the twentieth day of January, A. D. 1887, by virtue of the authority in him vested by law, at an adjourned sale of the sale begun and publicly held on the first Monday of November, A. D. 1886, the first day on which said real property was advertised for sale, expose to sale at the office of the city collector, in the city of St. Joseph, aforesaid, between the hours of ten o'clock in the forenoon and five o'clock in the afternoon, in conformity with all the requisitions of the statute in such case made and provided, the real property above described, for the payment of taxes, interest and costs then due and unpaid upon said real property; and, whereas, at the time and place aforesaid, said real property could not be sold for the amount of all taxes, interest and costs thereon; and, whereas the city auditor of the city of St. Joseph, under and by virtue of the direction of the comptroller of the city, bid off said real estate for the city of St. Joseph for $ 26.18, the amount of said taxes, interest and penalties; and, whereas, afterwards, viz., on the fifteenth day of March, 1887, J. C. Gregg paid to the city collector $ 26.18, the amount of all taxes, interest and costs on said real estate at the time of such payment; and, whereas, the city collector gave to said J. C. Gregg a certificate dated March 16, 1887, the day it was issued, describing said real estate so bid off for the city, stating the amount of each kind of tax, interest and costs for which it was bid off to the city, also the costs of all proceedings thereon, and stating also the amount paid to said city collector by said J. C. Gregg, and the time when said owner of said certificate would be entitled to a deed; and, whereas said certificate was thereupon duly assigned to said J. C. Gregg by the city auditor, and said assignment was noted in the book of sales kept by said auditor; and, whereas two years have elapsed since the first day on which said real property was advertised for sale, and the said property had not been redeemed therefrom as provided by law; and, whereas the city collector of the city of St. Joseph, aforesaid, did, at least four months before the expiration of the time limited for redeeming said real property, publish a notice, as required by the statute in such cases made and provided, that unless said real property was redeemed on or before the day limited therefor, it would be conveyed to the purchaser or his heirs or assigns. Now, therefore, I, George C. Crowther, city collector of the city of St. Joseph, county and state aforesaid, for and in consideration of the sum of $ 26.18, taxes, interest and costs due on said real property for the years A. D. 1881, 1884, 1885, 1886, to the city collector of said city of St. Joseph, paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained and sold and by these presents do grant, bargain and sell unto the said J. C. Gregg, his heirs and assigns, the real property last hereinbefore described, to have and to hold unto him, the said J. C. Gregg, his heirs and assigns forever, subject, however, to all rights of redemption provided by law.

"This deed is made to correct a deed by me made, as treasurer and ex-officio city collector of said city, on the nineteenth day of November, 1888, to said J. C. Gregg for said land hereinabove described, for said taxes, interest and cost for said years, said being recorded in the office of recorder of deeds of said county, in book 164, at page 20.

"In witness whereof I, George C. Crowther, city collector of the city of St. Joseph, aforesaid, have hereunto subscribed my name and...