Harness v. Cravens

• Decision Date: 22 December 1894
• Parties: Harness v. Cravens, Appellant
• Court: Missouri Supreme Court

28 S.W. 971

126 Mo. 233

Harness v. Cravens, Appellant

Supreme Court of Missouri, Second Division

December 22, 1894

[Copyrighted Material Omitted]

Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.

The plaintiff lived in Barton county; had lived there some seventeen years, having previously lived in Newton county five years or more on a farm, all in cultivation. That farm consisted of a piece of ground, to wit: The southwest quarter of the northeast quarter and the west half of the southeast quarter, less ten acres off the west side thereof (seventy acres), all in section 7, township 24, range 29. The portion in litigation is the seventy 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 eighty-two 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 seventy acres was estimated to be worth some $ 2,400.

Though living in Barton county some fifty or sixty miles distant from Neosho, the county seat of Newton county, 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 one hundred and ten 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 24 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 postoffice.' 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 seventy acres west half southeast quarter less ten 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, Missouri. 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 seventy acres. C. H. Brown & Co. paid the taxes shown by the statement gived 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 enclosed 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 forty 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 fifteen 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: -- Enclosed find draft for $ 25.50 sent by request of Isaac Harness to pay tax sw ne 7-24-29, 1886-1889. 70 acres w 1/2 se 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 enclose 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 1/4 ne 1/4 s. 7, t. 24, r. 29. Costs in full $ 26.25. The taxes having this day been paid, as appears from tax receipt presented to me by said . . . the suit above mentioned is therefore dismissed.

"J. E. Hinton, Clerk.

"By J. A. Jackson, D. C."

Another tax receipt signed by Gracy for taxes for year 1890, dated January 6, 1891, on the land in suit, was read in evidence by plaintiff. The date of the last mentioned tax receipt was only about three months before publication made in the suit now under discussion, in which Gracy was a party plaintiff. The testimony also tended to show that Gentry, a neighbor of Harness, had paid the taxes on the land in suit for the year 1886 for plaintiff, and had taken a receipt therefor, which tax receipt plaintiff gave to Sparkman, and gave him the money to pay plaintiff's taxes. This was in the early part of the year 1888; but Sparkman ran off, and so plaintiff lost both money and receipt.

Plaintiff also introduced in evidence county court records of Newton county, Book G, page 138, showing the action of the county court of Newton county, March 8, 1887, relative to the delinquent list for the year 1886; which record was as follows: "Now on this day comes B. P. Armstrong, collector of the revenue of Newton county, to make his annual settlement as collector, and presents his delinquent list for which he is allowed credit as follows: (Here follows on the record a tabulated statement showing the aggregate amount of the delinquent list and the total amount of double assessments.)" It was admitted that was all that appeared of record in relation to the delinquent list of 1886. There was no record showing that the county court had made any examination or correction of the delinquent list, or that it directed the list to be certified and filed.

Upon receipt of the sums mentioned in the exhibits Gibson, on November 10, 1891, entered the fact of payment opposite the tracts on which payment had been made, on the back tax book for the year of 1890 and prior years. And after that nothing on that book showed any taxes to be due on the land now in question.

On hearing of the sale of his land, plaintiff applied to defendant for permission to redeem it, but defendant refused...