Hobson v. Elmer

• Decision Date: 28 July 1942
• Docket Number: 38010
• Parties: Ernest Hobson, by N. D. Hobson, his guardian, v. Wm. P. Elmer, Jack Wesley, and C. K. Dalrymple, Appellants
• Court: Missouri Supreme Court

163 S.W.2d 1020

349 Mo. 1131

Ernest Hobson, by N. D. Hobson, his guardian, v. Wm. P. Elmer, Jack Wesley, and C. K. Dalrymple, Appellants

No. 38010

Supreme Court of Missouri

July 28, 1942

Appeal from Dent Circuit Court; Hon. William E. Barton Judge.

Reversed and remanded (with directions).

Wm P. Elmer, J. Dean Leffler and G. L. Gamblin for appellants.

(1) A purchaser at a tax sale received a certificate of purchase in 1936, under the Act of 1933. Laws 1933, p. 433, sec. 9953d; Sec. 1113, R. S. 1939. (a) The owner of any one interested may redeem the land from the tax sale at any time during the two years next ensuing the sale. Laws 1933, p. 437, sec. 9956a; Sec. 11145, R. S. 1939. (b) At the expiration of 2 years from date of sale the holder of the certificate of purchase can surrender the same to the collector and is entitled to receive a deed, which the collector shall execute subject to unpaid taxes. Laws 1933, p. 438, sec. 9957; Sec. 11149, R. S. 1939. (c) The purchaser is required to pay all taxes accrued since the sale and any prior taxes not foreclosed by the sale, before getting the deed. Acts 1933, p. 440, sec. 9957c; Sec. 11149, R. S. 1939. (d) The county collector shall execute a deed, witnessed by the county clerk and acknowledged as required of deeds, and recorded before delivery, the fee to be paid by the purchaser. Acts 1933, page 438, Sec. 9957a; Sec. 11150, R. S. 1939. (e) The purchaser shall apply for his deed and place the same on record within four years from the date of sale. If he fails to do so he loses the lien on the land. Laws 1933, page 435, sec. 9954c; Sec. 11137, R. S. 1939. (f) The procedure under the Laws of 1933 was changed on two sections in 1939. Sec. 9953a was repealed and reenacted. Material changes were made. Sec. 9953b was repealed and reenacted; Laws 1939, p. 852; Secs. 11130 and 11131, R. S. 1939. These changes do not affect this case. (g) The case of State ex rel. v. Baumann, 153 S.W.2d p. 31, court en banc recites with approval the sections of the Jones-Munger Act cited above, and under the certificate of purchase is inchoate right until the redemption period ends, then holder has a legal right to a deed. All he has to do to get the deed is to pay the taxes against his land. It is the duty of the collector to execute and deliver the deed. State ex rel. v. Baumann, 153 S.W.2d l. c. 34. (h) The defendant had an equitable interest in the land as a vendee and the collector held the title in trust for him. Defendant had a right in his answer to set up this equitable interest and have it protected and enforced in plaintiff's action to try title to land. State ex rel. v. Baumann, 153 (2d) l. c. 34; Sec. 1684, R. S. 1939. All the rights of all the parties in a try title action may be determined in law and equity. Lortz v. Rose, 145 S.W.2d 385, 346 Mo. 1212; Sanders v. Litchens, 137 S.W.2d 501, 345 Mo. 977. (2) Collector may appoint deputy who has same authority as collector. Sec. 11067, R. S. 1939.

E. W. Bennett for respondent.

(1) The owner of the land may redeem his land any time after the two years, if tax certificate owner has not applied for and paid for the deed, and also paid accrued taxes. Sec. 11145, R. S. 1939. The statute makes the tax certificate a lien for four years and if landowner redeems at any time before the tax certificate holder applies for a deed and actually pays subsequent taxes, the landowner is entitled to have certificate cancelled. Sec. 11137, R. S., 1939. (2) If the consideration for a tax certificate is so grossly inadequate as to shock the conscience of a court of equity, and amount to a legal fraud, the certificate, or in case a deed is issued thereon, should be set aside. Ellis v. Powell, 117 S.W.2d 225; Lindsay v. St. Louis, 139 S.W.2d 906.

OPINION

Hays, J.

In March, 1941, the respondent Ernest Hobson, through his statutory guardian, N. D. Hobson, instituted the present proceeding by filing in the Circuit Court of Dent County, Missouri, a petition in ejectment, seeking to obtain possession of a portion of two city lots in Salem, Missouri. The defendants named in the original petition were W. P. Elmer and Jack Wesley, who are now appellants in this court. The defendant Elmer answered, admitting that he claimed ownership of the property here involved and that his co-defendant Wesley was in possession thereof, denying the other allegations of the petition and setting up in considerable detail the facts which form the basis of his claim of ownership. Defendant Elmer also asked that one C. K. Dalrymple, Collector of Dent County, be impleaded as a party to the cause of action. He then asked that certain redemption certificates for the real estate herein involved, issued by Dalrymple to Hobson, be cancelled and set aside; that a certificate to purchase at a tax sale held by the defendant Elmer be reinstated and that Elmer be allowed to tender certain amounts due thereunder into court and upon such tender to receive a tax deed, and that the title to the land be decreed to be in Elmer. Defendant Wesley's answer was an admission of his possession and a general denial of other allegations. Summons was issued for Dalrymple and he appeared, filing his cross-answer to the original answer of Elmer which, as to him, was actually a third party petition, in which he denied the allegations of Elmer's pleading. Plaintiff also replied, denying the allegations made by Elmer. The cause was tried as a suit in equity and a decree in favor of the plaintiff entered by the chancellor. From this decree, after an unavailing motion for new trial, the defendants Elmer and Wesley have appealed.

The evidence preserved in the record discloses the following state of facts: In 1935 Wesley was the undisputed owner of the land in question, subject, however, to a deed of trust which was foreclosed December 13, 1935. A trustee's deed was made to one Gamblin. In November, 1936, there were delinquent taxes due upon this land from the years 1928 to 1935, inclusive. Apparently the land had been advertised for sale twice under the provisions of the Jones-Munger Tax Law. [Section 11125, R. S. Mo. 1939 et seq.] In November, 1936, the defendant Dalrymple, after proper legal advertisement, proceeded to offer these lands for the third and final time and Elmer became the highest bidder for cash therefor. The lands were sold in two tracts, each tract being a part of one city lot. Elmer's bid on one tract was $ 1.00 and on the other $ 5.00. Two certificates of purchase were duly issued to him after he had paid the amount of his bids plus certain costs which appear to have amounted to $ 38.40.

In February of the next year (1937) Gamblin gave a warranty deed to this land to one Hoodenpyle, who immediately executed a deed of trust thereon to the plaintiff's guardian. On October 25, 1940, this deed of trust was foreclosed and plaintiff, through his guardian, became the highest bidder at the foreclosure sale and received a trustee's deed. In the meanwhile neither Elmer, Hoodenpyle, nor plaintiff's guardian had paid the taxes on this land.

The facts in connection with Elmer's request for a tax deed and the alleged redemption of the land by the guardian are in dispute. Elmer called as a witness his secretary Ata Higgins, who testified that she went to the Collector's Office with the certificates of purchase and presented the same, requesting a statement as to the amount of the taxes due on said land. The collector was not there and his deputy stated that she did not know anything about the matter and that Mrs. Higgins would have to return later. Mrs. Higgins did return and left the certificates with the collector personally. She got a statement of the taxes and brought the same back to Mr. Elmer. Elmer later went over personally to the Collector's Office and returned to his own office. Elmer testified in his own behalf that he sent Mrs. Higgins with the certificates to the collector, after being informed by Mr. Dalrymple on the street that the time for securing the deed had almost elapsed; that he later went to the Collector's Office himself but that Dalrymple was not there and that the deputy told him that the tax deed had been made out and that there was a statement of taxes around the office somewhere. She looked for the deed and the statement but could not find them and informed Elmer that he would have to come back when Dalrymple was present. Elmer again returned to the Collector's Office and found Dalrymple there. He told him he had come for his deed, but was informed that Dalrymple was too busy to take care of the matter, and to come back again. Elmer returned a third time and Dalrymple was again absent and his deputy stated that she had not found the papers and could not take care of the business. Shortly thereafter and before Elmer could return a fourth time he received a notice that plaintiff's guardian had redeemed the land.

Dalrymple, testifying as a witness in his own behalf, denied that Mrs. Higgins had left the tax certificates with him and denied that he had refused to take up the matter with Elmer. He admitted that Mrs. Higgins and Elmer had called at the office and states that these calls had occurred in October. On the first of November, 1940, subsequent to these various conversations of Elmer and his secretary with Dalrymple, the guardian appeared at the Collector's Office, paid the delinquent taxes and the amounts due Elmer under the law and was given two redemption certificates.

The first question presented is whether or not the owner of property which has been sold for taxes may redeem the same at a time more than two years subsequent to the sale date. It will be noted that in the present case no effort at all to redeem was made within the two-year period nor indeed until...