Harness v. Cravens

• Decision Date: 22 December 1894
• Citation: 28 S.W. 971,126 Mo. 233
• Parties: HARNESS v. CRAVENS.
• Court: Missouri Supreme Court

28 S.W. 971

126 Mo. 233

HARNESS v. CRAVENS.

Supreme Court of Missouri, Division No. 2.

December 22, 1894.

TAXES — SALE FOR NONPAYMENT — PLEADINGS AND PRACTICE THEREIN — DUTIES OF COLLECTOR — TAX STATEMENT — EFFECT OF PAYMENT — NOTICE OF IRREGULARITIES — NOTICE OF SALE — NONRESIDENT DEFENDANT — MISNOMER.

1. Where, in an action to foreclose a tax lien, the owner is proceeded against as a non-resident,

but instead of taking out an order of publication against him, as in such case provided by Rev. St. 1889. § 2022, a summons is issued to him, authorized by sections 2013, 2023, against resident defendants only, and such summons is returned non est, and on this return an order of publication is based, as provided for by Rev. St. 1889, § 2024, only when such summons has been properly issued and returned non est and the court is satisfied that the defendant cannot be found, a judgment foreclosing the lien is invalid. Gantt, P. J., dissenting.

2. Under Rev. St. 1889, §§ 7606, 7679, 7681, making it the duty of the collector to furnish taxpayers living out of the county with a statement of the taxes against any tract of land on demand, and of the county clerk to place in a "back-tax book" a correct list of lands on which back taxes are due, and providing that when any suit is commenced against any tract of land on said book the collector shall note that fact therein, the fact that a nonresident owner called on the collector for a statement of the taxes on certain land, and paid the amount claimed by the latter to be due, discharges the lien on such land for any amount of tax which the collector may have failed to demand of him.

3. Where the purchaser at the execution sale following a judgment rendered in a proceeding to collect back taxes was the attorney for the plaintiff therein, he is chargeable with notice of all irregularities in such proceeding.

4. Rev. St. 1889, § 4943, which requires that notice be given to defendant when his real property, situated in a different county from that in which he resides, is sought to be sold under execution, does not apply in favor of one ignorant of the pendency of an action against him, when the judgment is rendered and execution issued in the county in which the land is situated. Sherwood, J., dissenting.

5. A misnomer of the judgment debtor in the notice of a sale of certain land by the sheriff on execution issued under a judgment for taxes renders the sale thereunder to one purchasing with notice void.

Appeal from circuit court, Jasper county; M. G. McGregor, Judge.

Action by Isaac Harness against O. L. Cravens to redeem certain real property from a tax sale thereof. There was a decree for plaintiff, and defendant appeals. Affirmed.

The plaintiff lived in Barton county. Had lived there some 17 years, having previously lived in Newton county 5 years or more on a farm, all in cultivation. That farm consisted of a piece of ground, to wit, the S. W. ¼ of the N. E. ¼ and the W. ½ of the S. E. ¼, less 10 acres off the west side thereof (70 acres), all in section 7, township 24, range 29. The portion in litigation is the 70 acres, which has a house and orchard on it. The plaintiff was well known among his neighbors in Newton county at the time he resided there, and when this cause was heard was nearly 82 years of age, and wholly illiterate, not being able to read his tax receipts. Since leaving his farm and removing to Barton county, he has had his farm continuously in cultivation, and, with the exception of one summer, continuously occupied, one of his sons having lived on the place four or five years. Plaintiff paid for the farm $25 per acre, and the 70 acres was estimated to be worth some $2,400. Though living in Barton county, some 50 or 60 miles distant from Neosho, the county seat of Newton, the old man made occasional trips to the county of his former residence, and while there on one of these visits in August, 1888, he went to the collector's office, and asked to pay "all taxes against him" on his land, — against that land that he owned, the 110 acres, — and Bailey P. Armstrong, the then collector, looked up the land on being told where it was, and Harness "paid all he fetched forward." Having paid his taxes, the collector gave him a tax receipt for the year 1887. In March, 1889, Harness paid the taxes on the land for the year 1888, and took a receipt therefor from Gracy, the collector in the tax-suit controversy, and when in the collector's office on that occasion Harness says he "called for all the taxes against the land." That suit was begun September 14, 1889, and was for the taxes on the land for the year 1886, a duly-certified tax bill accompanying the petition, which alleged defendant to be a nonresident of the state. An affidavit as to nonresidency was also made. On the filing of the petition a summons was issued, and, the sheriff having returned non est on the writ, publication was made, etc. Judgment was rendered in the suit thus instituted July 11, 1891. Execution was issued August 24, 1891, and on September 24th next thereafter a sale of the land in controversy occurred, at which defendant became the purchaser at the price of $25.

Harness was unaware of any taxes being due, or of any suit having been instituted against him for taxes, on the land in controversy, and did not know of the sale until in the subsequent December, when a friend wrote him a letter concerning it. Between the time of the rendition of the judgment and the sale of the land, Dry, a tenant of Harness', who lived on the litigated land, happened to be in the collector's office to pay taxes on Gentry's land, Gibson being then collector. While there, witness says: "Gibson spoke to me, and asked if I knew anything about the Harness land, and I said, `Yes'; that I had rented it. He says, `Do you know anything about who pays the taxes on it?' I says, `Yes, Isaac Harness himself.' He says, `Do you know where he resides?' I says, `Yes, he lives in Barton county, and Milford is his post office.' And then I told him I knew Harness didn't know anything about this tax, or he would pay it; and he said he would notify him. I says, `If you will make a statement of that tax, I will see that he gets it.' I then sent Mr. Harness the statement given to me by the collector, Mr. Gibson. I did not ask the collector for the statement; he gave it to me voluntarily, and I did not ask about any back taxes on the land." This was in the early part of October, 1891. On this point Gibson testified: "That statement showed the taxes due on the southwest quarter of the northeast quarter of section 7, township 24, range 29, for years 1886 and 1889, and also 70 acres west half southeast quarter, less 10 acres, section 7, township 24, range 29, for 1889. I ascertained the amount of taxes shown in the statement sent to Harness from the `Consolidated Back-Tax Book' of 1890 and prior years of Newton county, Mo. That book was delivered to me by the county clerk, was in my office and custody, and showed all the taxes against the land in suit which appeared in that book; and that book was the only one in my office that showed the delinquent taxes for the year 1890 and prior years. That book showed all the back taxes for all the years prior to and including the year 1890. In cases where suits had been instituted by my predecessor, undisposed of at the time I came into office, they were carried forward, and shown by that back-tax book, and the suits marked. The book did not show any suits against this 70 acres. C. H. Brown & Co. paid the taxes shown by the statement given to Dry. See Exhibit A. On November 4, 1891, I wrote them a letter, marked `Exhibit B,' and received response, marked `Exhibit C.' I paid the money inclosed therewith to J. E. Hinton, circuit clerk, and got receipt, marked `Exhibit D.' This paid all the back taxes shown on the books in my office against the land in controversy. Gracy was my predecessor in office, and all I had to do was to collect the tax money due on suits he had brought. The back-tax book for the year 1890 and prior years, although it showed a suit for taxes against the 40-acre tract, the southwest of the northeast for the year 1886, did not show that Isaac Harness was a party to that suit. All the land described in Exhibit A was assessed to William Harness." Gibson testified that he had known the "Harness Land" for 15 years. Never knew about tax suit until land sold.

The exhibits referred to were as follows:

Exhibit A: "Lamar, Mo., October 30, 1891. Collector Newton Co., Neosho, Mo. — Dear Sir: Inclosed find draft for $25.50, sent by request of Isaac Harness to pay tax sw ne 7-24-29, 1886-1889. 70 acres w½se 1889. This is according to a statement sent him. Yours, C. H. Brown Bkg. Co., R. P. Smith, Prest."

Exhibit B: "Neosho, Mo., November 4, 1891. Mr. C. H. Brown — Dear Sir: I received a draft for $25.50 to pay taxes for 1889 and 1886. The statement given to the man that lives on the Harness place did not include the cost of a suit pending for taxes on sw ne for taxes for 1886. The cost of suit is $26,25, and taxes for 1889 amounts to $25.50. Total amount, $51.75. The land will be sold for taxes next week at the circuit court of Newton county. Please let me know what course to pursue in regard to it. Respt., W. F. Gibson, County Collector."

Exhibit C: "Lamar, Mo., November 9, 1891. W. F. Gibson, Esq., Neosho, Mo. — Dear Sir: Your favor of the 4th rec'd. In answer, at request of Isaac Harness, I inclose draft $26.25 as per your statement of costs due on sw ne for year 1886. Mr. Harness says he will be down soon, but he did not know that his tax was back. Yours, R. P. Smith, Prest."

Exhibit D: "Neosho, Mo., November 10, 1891. Received of C. H. Brown the sum of twenty-six and 25-100 dollars, being in full of costs in circuit court on suit for taxes against the following described land, to wit: sw ¼ ne ¼ s. 7, t. 24, r. 29. Costs in full, $26.25. The taxes having this day been paid, as...