Mangold v. Bacon

Decision Date07 June 1911
Citation141 S.W. 650,237 Mo. 496
PartiesMANGOLD v. BACON
CourtMissouri Supreme Court

Graves, J., dissenting.

In Banc. Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Suit by John Mangold against Ernest Bacon. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

David W. Hill, for appellant. Jas. F. Green and Ernest A. Green, for respondent.

LAMM, J.

Equity — the relief sought being to set aside a judgment and cancel a tax deed. Here once before, heard and submitted in division, and then in banc, a judgment in Mangold's favor was reversed, and the cause was remanded. Mangold v. Bacon, 229 Mo. 459, 130 S. W. 23. Below he amended his bill, and, on an attempt to introduce evidence, was met by an objection that his bill as amended did not state facts sufficient to constitute a cause of action. That objection was sustained. Saving his exception, he refused to plead over, elected to stand, and suffered judgment, viz., that his bill be dismissed, and that defendant recover costs. From that judgment, he appeals.

The pith of the bill will do for our purposes, viz.:

In 1902 Mangold owned 40 acres of land in Butler county (the S. E. quarter of the S. W. quarter of section 2, township 23, range 5). In that year he sold and conveyed to the Hogans (husband and wife) for $900 — $100 in hand and $800 evidenced by promissory notes, secured by a deed of trust on the 40 — said deeds spread of record and the Hogans taking possession. In September, 1903, one Souders, collector of revenue for Butler county, brought suit as relator against Mangold, the Hogans, and others in the Butler circuit court, returnable to the ensuing October term, to enforce the state's lien for taxes delinquent for 1900 and 1901. Summons issued. Mangold and three other named parties were served with copies on the 19th of November. Thereafter, in that month, to stop further proceedings and to protect his equity in the 40, Mangold (living away from the county seat) wrote Souders for the amount of taxes, penalties, fees, and costs. Souders in December of that year sent him a statement showing them to be $15. Thereat Mangold on the 26th of that December paid Souders, as collector, in full, and Souders sent him a tax receipt, and at the same time marked the tax book paid in full for those years. Thereby (so the bill states) the state's lien was satisfied and extinguished. Notwithstanding that fact, thereafter the sheriff summoned the Hogans and thereafter made return of his writ showing personal service on all the defendants. On the last day of December, 1903, the Hogans by their deed spread of record reconveyed the 40 to Mangold for $800. Relying on the fact that he had paid his taxes due, together with penalties, etc., thereby satisfying and extinguishing the state's lien, Mangold paid no further attention to the tax suit, in good faith believing, as did each of his codefendants, that the suit would be dismissed by Souders, and that no further proceedings would be had therein. Notwithstanding all the foregoing facts, Souders, without the knowledge of Mangold or his codefendants in the tax suit, went on with that suit, and in June, 1904, took judgment by default. (The judgment is in form and is set forth in the bill, but its narrations are immaterial to questions raised.) Subsequently, still without the knowledge or consent of Mangold or his codefendants, Souders sued out execution, put the same into the hands of the sheriff of Butler county, who in August of that year levied the same on the 40, and advertised a sheriff's sale pursuant thereto. Subsequently said sheriff on a day in that August, still without the knowledge or consent of Mangold et al., sold the 40 at public outcry, and it was struck off to Bacon on his bid of $12.50. Said bid (quoting) "was a shockingly and grossly inadequate price for said land," then well worth $1,200. Thereupon the sheriff executed a deed to Bacon on his bid, and he is now claiming title to the locus in quo under the tax judgment, execution, and deed, which tax judgment and tax deed are a cloud upon Mangold's title. (Note: The averment as to inadequacy of price, heretofore quoted and italicised, was interpolated as an...

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