Little River Drainage District v. Sheppard
| Decision Date | 21 June 1928 |
| Docket Number | No. 28787.,28787. |
| Citation | 7 S.W.2d 1013 |
| Parties | LITTLE RIVER DRAINAGE DISTRICT, Appellant, v. MARTHA ESTELLA SHEPPARD. |
| Court | Missouri Supreme Court |
Appeal from Stoddard Circuit Court. — Hon. W.S.C. Walker, Judge.
REVERSED AND REMANDED.
Oliver & Oliver for appellant.
(1) The annual installments of the total tax levied subsequent to 1924 were not disturbed nor impaired by reason of the sale of land for taxes due the State for 1924 and prior years. Sec. 4394, R.S. 1919, provides for the levy of the total tax. This tax is nothing more than an estimate of the amount of money required to meet the obligations of the district during the period of its activity. The annual installment (Sec. 4395, R.S. 1919) is a yearly determination of the amount required for that or the ensuing year. Section 4399 establishes the lien. The levy of the total tax constitutes an appropriation or setting aside of a sufficient amount of the assessed benefits as will produce a sum, to be annually collected and in proportion to benefits, that will pay all the costs of the district, including bonds issued and the interest thereon. The security back of the bonds is the lien on the land. This lien dates from the levy and certification of the total tax to the Recorder and is paramount to all other liens except the lien of the State for general taxes. This lien is somewhat dormant when first levied, but has vitality put into it by the "determination, order and levy" of the amount of the annual installment and maintenance tax by the board of supervisors, as provided by Secs. 4395 and 4419, R.S. 1919. This was the holding in the case of Drainage District v. Winklemeyer, 278 Mo. 268. Hence, since the district's lien for taxes due in 1925 and subsequent years was not vitalized and did not become effective until after the State's lien for the taxes due in 1924 and prior years had been enforced, under no condition could the entire total tax due the district for the year 1925 and subsequent years be destroyed by reason of the sale of the land in question for state taxes for years 1921, 1922, 1923 and 1924, and the trial court's judgment was correct in holding the plaintiff could recover for the taxes due it for 1925, 1926 and 1927. Secs. 4394, 4395, 4399, 4400, 4419, R.S. 1919; Elsberry Drainage District v. Winklemeyer, 278 Mo. 268; Little River Dr. Dist. v. Houck, 206 Mo. App. 286; State ex rel. v. Angert, 127 Mo. 456; Excelsior Springs v. Henry, 99 Mo. App. 450. (2) The sale of the land for state taxes due for years 1921 to 1924 did not destroy the right of the district to collect its taxes for the same or prior years. Secs. 4399, 4400, R.S. 1919: State ex rel. v. Werner, 10 Mo. App. 41; Ean Claire Lumber Co. v. Anderson, 13 Mo. App. 435; Excelsior Springs v. Henry, 99 Mo. App. 450; State ex rel. v. Angert, 127 Mo. 456; State ex rel. Land v. Trimble, 2 S.W. (2d) 616; Good v. Johnson, 299 Mo. 186. (3) It is the duty of the landowner to pay his taxes. He cannot by conniving and collusion defeat even a mortgage lien, much less a statutory one. The acquiring of the title by E.E. Sheppard did not amount to a foreclosure of the tax lien. It constituted payment. New England Trust Co. v. Browne, 177 Mo. 412; Fuller v. Hoddon, 25 Me. 243; Porter v. Lafferty, 33 Iowa, 254; Fair v. Brown, 40 Iowa, 249; Avery v. Judd, 21 Wis. 262; Insurance Company v. Patton, 98 Ind. 209; Kezer v. Clifford, 59 N.H. 208; Boyd v. Allen, 15 (Lea) Tenn. 81.
Wammack, Welborn & Cooper and Shane & Batton for respondent.
(1) The lien of the State for general taxes is paramount to the lien of Little River Drainage District for ditch taxes. This is expressly made so by Sec. 4399, R.S. 1919, which is the statute giving Little River Drainage District a lien at all for its taxes, and that section expressly provides that the State's lien for general taxes is paramount to the district's lien for drainage taxes. Even without the statute the lien of the State for general taxes would be paramount to the lien of the drainage district for ditch taxes. State ex rel. Land v. Trimble, 2 S.W. (2d) 617; Jaicks v. Oppenheimer, 264 Mo. 693; Morey Const. Co. v. St. Louis Co., 242 Mo. 241; Mo. Real Estate & Loan Co. v. Burri, 202 Mo. App. 242. (2) Plaintiff contends that the lien of the drainage district for its taxes is a separate lien for each year's taxes, and that we cannot consider the taxes for years subsequent to the sale of the lands for the general taxes, as having been a lien at the time the general taxes were due. The statute would hardly hear this construction. It provides that the board of supervisors shall determine the total amount of the tax to be levied by the district, and that they shall then levy the total tax and file the same properly certified, in the office of the Recorder of Deeds, and from that time said tax shall be a lien on the lands, to which only the State's lien for general taxes shall be paramount. Sec. 4399, R.S. 1919. The only lien given by the statute, is a lien for the whole amount of tax levied, and that lien is given at the time the certificate is filed with the Recorder of Deeds. Thereafter the board of supervisors each year determines the amount of this tax to be paid in the particular year, and orders the same extended on the tax book for collection during the year. No new lien is provided for. It is simply a matter of providing for the payment of the lien in part each year. The only lien is the lien for the whole tax given at the time the tax record and certificate is filed with the Recorder of Deeds, and the statute expressly provides that the State's lien is paramount to that lien. (3) The controversy here is a matter of statutory construction. The statute expressly provides that the State's lien for its taxes is paramount to the lien of the drainage district for its taxes. This provision should not be ignored. If the lien is paramount, then the respondent holding title under the foreclosure of the said paramount lien, has a claim and title paramount to the plaintiff's lien for drainage taxes. This paramount lien has been foreclosed, and the only right, if any, left in appellant as the holder of the inferior lien, is the right to redeem. Valentine v. Havener, 20 Mo. 133; Stafford v. Fizer, 82 Mo. 393; Williams v. Brownlee, 101 Mo. 309. (4) Our statute relating to sheriff's deeds, in the case of sale of land for general taxes, provides that such deeds shall convey to the purchaser a title in fee. Sec. 12948, R.S. 1919. In Missouri Real Estate & Loan Company v. Burri, 202 Mo. App. 242, the court has held that where land was sold for the lien of city taxes, said lien being superior to the lien of a special tax bill, suit could not thereafter be maintained upon the special tax bill. So, too, in Jaicks v. Oppenheimer, 264 Mo. 700. (5) The owner is not required to pay the drainage taxes unless he so desires, inasmuch as they have been levied in invitum. A sale of the land for the superior lien of the general taxes passed a title to the purchaser, superior to appellant's lien for its ditch taxes. The land sold at public sale, and E.E. Sheppard was the highest bidder. If the sale passed title superior to plaintiff's lien, it is not apparent how it could be any concern of appellant who bought the land in at the sale for the general taxes. It was not the purchase of the land, but it was the foreclosure of the State's paramount lien which cut off appellant's lien for its ditch taxes.
The plaintiff brings this suit to collect delinquent drainage taxes assessed for the years 1921-1927, both inclusive. The petition is in seven counts, one for each year's assessment. The answer alleges as a complete defense that the land was sold under a judgment of the circuit court for delinquent general state and county taxes due for the years 1921 to 1924, inclusive. Defendant claims under that tax title. The facts appear in an agreed statement.
The trial court found for the defendant on counts one to four, inclusive, adjudging that the sale under the judgment for state and county taxes destroyed the plaintiff's lien for the years 1921-1924, the years for which the state and county taxes were levied and the property sold; found for the plaintiff on counts five, six and seven, and enforced the lien of the district for its assessments for the years 1925, 1926 and 1927, as superior to the tax title acquired under the general tax sale. Plaintiff appealed.
The claim of the respondent is that the State's lien for state and county taxes, the judgment for the same and the sale thereunder, cut out entirely the drainage district special assessment liens, whether those liens accrued after the state lien attached, at the same time, or before.
The trial court held that it cut out the liens of assessments levied during the same years that the lien for the state taxes accrued and became payable, but did not destroy the liens of the district for subsequent years.
I. The general rule is that the priority of general tax liens is in the reverse order of their accrual. That is, the latest tax lien
is paramount to a prior tax lien. In Jaicks v. Priority. Oppenheimer, 264 Mo. 693, in an interesting discussion of the principle, it was held by the Court en Banc that the same principle applied to special tax liens; that those subsequent in time enjoyed a priority over those prior in time. Section 4400, Revised Statutes 1919, makes them so in this case, as will be noted below.
It is claimed by the plaintiff that such subsequent special tax liens are paramount to prior general state tax liens. We find it unnecessary to discuss that subject, because the liens of the district affected here include special tax liens contemporaneous with the general state liens, and the parties insist that we determine the relation of these liens to each other.
The statute relating to the State's lien for general taxes, Sections 12757 and 12758, provide for the continuance of the lien until paid, and...
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