Mangold v. Bacon

• Decision Date: 28 June 1910
• Citation: 130 S.W. 23,229 Mo. 459
• Parties: MANGOLD v. BACON.
• Court: Missouri Supreme Court

130 S.W. 23

229 Mo. 459

MANGOLD v. BACON.

Supreme Court of Missouri.

June 28, 1910.

1. TAXATION (§ 809)—ACTION TO AVOID TAX JUDGMENT AND DEED—THEORY OF PETITION.

The petition, averring that the collector of taxes commenced action against plaintiff to enforce the state's lien against his land for back taxes; that he thereafter obtained of the collector a statement of the full amount of taxes due, together with penalties, fees, and costs, amounting to $15, and paid such amount to the collector, who gave him a receipt therefor, and marked the same paid on the books of the collector's office, and that by so doing said land became fully discharged of the state's lien for said back taxes; that plaintiff relied on the fact that he had paid said tax and penalties, and therefore paid no further attention to said tax suit; that he believed that the collector would dismiss the suit at the proper time, and therefore paid no further attention to it; that thereafter judgment was taken in the tax proceeding not only for the costs thereof, but for such taxes and penalties; that execution was issued on such judgment, and pursuant thereto, without plaintiff's knowledge or consent, the land was sold to defendant for $12.50, which amount plaintiff now tenders and offers to refund to him, and plaintiff says that said land was then and there well worth $1,000; and that said judgment with the deed based thereon constitutes a cloud on plaintiff's title, and that by reason thereof, defendant is asserting title to the land; and praying that said judgment be declared void, and that the sheriff's deed to defendant be canceled—is based on the erroneous theory that the mere payment of the taxes rendered the judgment in the tax proceedings voidable, and does not count on fraud or mere inadequacy of price.

2. APPEAL AND ERROR (§ 171)—THEORY OF TRIAL.

The parties having below adopted a theory and tried their case thereon, it must be tried on appeal on such theory.

3. TAXATION (§ 648)—JUDGMENT FOR TAXES —COLLATERAL ATTACK.

A defendant, properly served in a tax proceeding, cannot collaterally attack the judgment therein, and defeat the title of the purchaser under such judgment by showing that the taxes for which judgment was rendered were paid before it was rendered; at least where it is not even charged that the purchaser under the tax

judgment had any knowledge of fraud in its concoction.

4. APPEAL AND ERROR (§ 171)—THEORY OF TRIAL BELOW.

The trial below in a suit to avoid a tax sale, in which the petition did not count on inadequacy of price at the sale as a ground to set aside the sale, was not on the theory of inadequacy of price being a material element; the trial court having, when the question of the value of the land first came up, ruled that under the petition, it was not in the case; and though later one witness was allowed to state the value of the land "subject to objection," such objection not having been passed on, and defendant having offered no evidence on the question of inadequacy of price.

5. ESTOPPEL (§ 94)—TAX SALE—ESTOPPEL TO SEEK AVOIDANCE.

One who, knowing that his land was advertised for sale under what he claimed was a void judgment, gave no notice to protect purchasers under the judgment, would be estopped to assert the invalidity of the title acquired by the purchaser having no knowledge of the things de hors the record that made the judgment void; or at least his conduct would leave him little standing in a court of conscience.

6. TAXATION (§ 689) — TAX SALE — INADEQUACY OF PRICE.

A tax sale under a tax judgment will, like any other judicial sale, not be set aside for mere inadequacy of price.

7. TAXATION (§ 809)—SUIT TO AVOID TAX DEED—FRAUD—PLEADING.

The petition, in a suit against the purchaser under a tax judgment to avoid his deed on the ground of fraud in the concoction of the judgment, must, where it is only by facts de hors the record that such judgment can be impeached, allege defendant's knowledge thereof.

Lamm, Valliant, and Woodson, JJ., dissenting.

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

Suit by John Mangold against Ernest Bacon. Judgment for plaintiff, and defendant appeals. Reversed and remanded for further proceedings.

Ernest A. Green and James F. Green, for appellant. D. W. Hill, for respondent.

GRAVES, J.

This cause has been so much discussed and written upon that I am impressed with the idea that a further and fuller statement of the pleadings and evidence should be made.

Plaintiff, who was successful below, lodged his petition with the circuit court of Butler county, the substantial allegations of which are as follows: He avers (1) that on February 12, 1902, he was the owner of the land involved in this suit; (2) that on February 13, 1902, he conveyed the same to William L. and Frances C. Hogan, husband and wife, for the price of $900; (3) that such grantees paid $100 cash and executed their notes and deed of trust for the balance; (4) thereupon Hogan and wife entered into possession of the property; (5) that on September 10, 1903, the collector of revenue for the county of Butler instituted suit against plaintiff, the two Hogans, Daniel Cochran, S. W. Foster, and E. E. Pennington, the purpose of which suit was to enforce the state's lien against the land involved in this case for back taxes then delinquent for the years 1900 and 1901; (6) the petition then alleges due service of process upon the plaintiff Mangold and others; (7) that Mangold, with a view of stopping further proceedings as against the land in which he was interested as a beneficiary in a deed of trust, wrote to Souders, collector of revenue for Butler county, to obtain a statement of the amount of taxes due on the land in question; (8) that in December, 1903, said Souders did send to plaintiff Mangold, a statement of the full amount of taxes due on the land in question together with penalties, fees, and costs; (9) that said Mangold upon receipt of a letter from the collector sent to the collector the taxes, penalties, fees, and costs on the land involved in this suit, for the years 1900 and 1901, in the sum of $15; (10) that upon the payment of the sum aforesaid to said collector, Souders gave to the plaintiff Mangold a receipt for the taxes and penalties due on said land for the years aforesaid, and marked the same paid upon the books of said collector's office, and that by so doing said land became fully discharged of the state's lien for back taxes for the two years aforesaid; (11) that after due service of process upon the two Hogans, as well as upon the plaintiff, and on the 31st day of December, 1903, said Hogan conveyed the land in question back to the plaintiff Mangold; (12) said Mangold then avers in his petition that he relied upon the fact that he had paid the taxes together with the penalties for the years 1900 and 1901 on said land, and therefore paid no further attention to the tax suit instituted against him and others aforesaid; (13) he also alleges that it was his belief that said suit would be dismissed at the proper time by the said collector Souders, and for that reason paid no further attention to the suit, but he fails to allege that there was ever any payment of accrued costs in the suit, or any agreement that the suit would be dismissed without payment of costs by him; (14) that after due service of process, under the facts above detailed, judgment was taken against the defendants in said tax proceeding, not only for the costs of the proceeding, but for the taxes for the two years of 1900 and 1901, together with the penalties accruing by virtue of law upon said taxes; (15) that in pursuance of such judgment, regularly entered by the circuit court as aforesaid, and without any charge of fraud in the petition as against the collector or his attorney, execution was issued and the land sold to defendant Bacon for the aggregate sum of $12.50.

There is a statement in the petition thus reading: "Plaintiff further states that pursuant to said advertisement, as aforesaid, the sheriff of Butler county, Mo., without the knowledge or consent of this plaintiff or either of his codefendants did, on the 6th day of October, 1904, sell said land at public outcry to the highest bidder for cash, and that this defendant, Ernest Bacon, did then and there bid in said lands for the price and sum of $12.50, which amount plaintiff now and here tenders and offers to refund to said Bacon, and plaintiff says that said land was then and there well worth the sum of $1,000."

This is the only allegation in the petition with reference to the value of the land or with reference to the sale thereof at an inadequate price. There is no charge in the petition from beginning to end that the land sold for an inadequate price by reason of anything occurring from the date of the tax judgment to the date of the sale. In other words, the petition is clearly based upon the idea that the mere fact of the taxes having been paid between the time of service in the tax suit and the time of judgment rendered the judgment void. Not only so, but it was void notwithstanding there was no allegation that any actual fraud was perpetrated by the collector, or any agreement between Mangold and the collector that the tax suit theretofore commenced should be dismissed without cost to Mangold, or to those in privy with him.

No claim is made that the collector fraudulently procured the judgment. No claim is made that the collector agreed to see to a dismissal of the tax suit. No claim is made that Mangold had ever paid the accrued costs in the tax suit. No denial is made that the suit was not properly brought. In fact, it stands admitted that the suit was properly brought, and that the taxes for the two years were due at the time. The petition, when analyzed from end to end, considering every averment therein, plants plaintiff's right to relief upon the sole ground that he, as a beneficiary in a deed...