Lynch v. Donnell

• Decision Date: 23 March 1891
• Citation: 15 S.W. 927,104 Mo. 519
• Parties: LYNCH v. DONNELL.
• Court: Missouri Supreme Court

15 S.W. 927

104 Mo. 519

LYNCH v. DONNELL.

Supreme Court of Missouri, Division No. 1.

March 23, 1891.

TAXES — SALE FOR NON-PAYMENT — NOTICE — ADJOURNMENT.

1. Session Acts Mo. 1875, p. 231, § 44, provides that the collector of the City of Kansas shall post notices of tax-sales at least three weeks before the sale, and that he shall, before making the sale, file with the auditor a copy, with his certificate "that said notice had been posted up in the four most public places in the city, at least three weeks before the sale." Held, that it was sufficient for the certificate to show that the collector posted the notices three weeks before the sale, and that it need not show that they remained posted for three weeks.

2. The collector is not required to post the notices himself, but may do so by deputy.

3. The collector certified that he had posted the notices in the four most public places in the city, naming them. Five years before an ordinance of the city designated these places for posting notices of tax-sales, and the notices had since then been posted there. There was evidence that one of those selected was less public than other places in the city, all of which, however, were near to two of those selected. The place in question was the most public one, in an important and populous division of the city, having to some extent a separate social and business life of its own. Held that, while the ordinance was not binding on the collector, its observance until it became a custom was a fact not to be disregarded in determining the four most public places, and that those selected by the assessor were the proper ones.

4. Under Sess. Acts Mo. 1875, p. 231, § 45, directing the collector to continue the sale from day to day as long as there are bidders, or until the taxes are all paid, he may adjourn the sale from the day before to the day following Thanksgiving day; for Rev. St. Mo. 1879, §§ 551, 4039, declare that day a public holiday, and that for all purposes in regard to the presentment of negotiable paper and the service of process it shall be treated as Sunday.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

W. C. Stewart, for appellant. C. O. Tichenor, for respondent.

BRACE, J.

This is an action to set aside a tax-deed from the city collector of Kansas City to the defendant for a lot in said city, as being a cloud upon plaintiff's title thereto. The court found for the plaintiff, and the defendant appeals from the judgment rendered on such finding. The plaintiff concedes that the tax-deed is valid upon its face, but claims that the tax sale is void for the following reasons: "(1) The notices of sale were not posted up in the four most public places in Kansas City. (2) The places were not selected by the collector, but by the council. (3) The notices were not posted by the collector. (4) The certificate and affidavit in reference to said notice were prematurely made and filed, and the certificate is not in the form required by the charter. (5) The sale was not continued from day to day; no sale having been made on Thursday, November 30th, because it was Thanksgiving day." The charter provisions by which the questions raised must be ruled are as follows, (Sess. Acts 1875, pp. 231, 232, art. 6:) "Sec. 43. The notice to be given of the sale of property for delinquent taxes shall state the time and place thereof, and contain a description, substantially the same as in the land tax-book, of the several parcels of real property to be sold, and all delinquent taxes and assessments thereon, and such real property as has not been advertised and sold for the taxes of any previous year or years, and on which taxes or special assessments remain due and delinquent, and the amount of the taxes and special assessments, interests and costs, against each parcel of real property. Sec. 44. The city collector shall give the notice required in the last preceding section, by causing the same to be published once in each week, for three successive weeks, in some newspaper published in the City of Kansas, the last publication to be at least one day before the day of sale. The city collector shall charge and collect, in addition to the taxes and interest, a sum not exceeding ten cents on each tract of real property advertised for sale, or any sum not exceeding said amount, as may be provided by ordinance of the City of Kansas; and if the city collector cannot procure the publication of said notice for the sum herein specified, or as may be provided by ordinance as aforesaid, or if from any reason the city collector is unable to procure the publication of said notice, he shall post up written notices of said sale in the four most public places in the City of Kansas, at least three weeks before [the] sale, and notice so given shall have the same force and effect as though the same had been published in a newspaper. In that case he shall, before making the sale, file in the office of the city auditor a copy of said notice, with his certificate indorsed thereon, setting forth that said notice had been posted up in the four most public places in the City of Kansas, at least three weeks before the sale, which said certificate shall be subscribed by him, and sworn to before some person authorized to administer oaths. The city collector shall obtain a copy of said advertisement, together with a certificate of the due publication thereof, from the printer or publisher, or business manager, of the newspaper in which the same shall have been published, and shall file the same in the office of the city auditor, and such certificate shall be substantially in the form that may be prescribed by ordinance of the City of Kansas, or by the comptroller. Sec. 45. The city collector shall, at his office in the City of Kansas, on the day of sale, at the hour of ten o'clock in the forenoon, offer for sale, separately, each tract or parcel of real property advertised for sale, on which the taxes, interest, an costs or special assessments have not been paid, and shall continue the sale from day to day, between the hours of ten o'clock in the forenoon and five o'clock in the afternoon, as long as there are bidders, o until the taxes are all paid." By an ordinance of the city approved August 21, 1877, it was ordained: "Section 1. That the charges allowed for publishing the notice to be given by the city collector of the sale of real estate for delinquent taxes, as is prescribed by sections 43 and 44 of article 6 of the charter, shall not exceed ten cents on each tract of real property advertised for sale, for the entire years of delinquency. Sec. 2. In case the city collector cannot procure the publication of said notice by any newspaper published in the City of Kansas he shall put up written notices of said sale in the four most public places in the City of Kansas, at least three weeks before the sale, and the common council hereby determine that the four most public places in the city of Kansas are to-wit: The old city court-house, on the corner of Fourth and Main streets; the post-office, corner of Main and Seventh streets; at number 1433 Grand avenue, near the north-east corner of Grand avenue and Fifteenth street; the Leland Hotel, Union avenue, West Kansas City. * * *" On the 14th of October, 1882, the collector filed in the office of the city auditor a copy of the notice of sale for delinquent taxes given in this case, said notice conforming to the requirements of section 43 of the charter, together with his certificate thereon; setting forth that, being unable to procure the publication of said notice in any newspaper published in the City of Kansas for a sum not exceeding ten cents per tract, he posted up written notices of the sale, of which the one filed is a true...