Mangold v. Bacon

• Decision Date: 27 November 1911
• Citation: 141 S.W. 650,237 Mo. 496
• Parties: JOHN MANGOLD, Appellant, v. ERNEST BACON
• Court: Missouri Supreme Court

141 S.W. 650

237 Mo. 496

JOHN MANGOLD, Appellant, v. ERNEST BACON

Supreme Court of Missouri

November 27, 1911 ^[*]

237 Mo. 496 at 544.

Original Opinion of November 27, 1911, Reported at: 237 Mo. 496.

Motion overruled.

James F. Green and Ernest A. Green for respondent on motion for rehearing.

(1) The decision rendered in sad cause is in conflict with an express statute. R. S. 1909, sec. 11,508; Laws 1903, p. 254. (2) The decision in said cause is in conflict with two other express statutes. R. S. 1909, sec. 11,495 (R. S. 1899, sec. 9301); R S. 1909, sec. 11505 (R. S. 1899, sec. 9310). (3) The decision is in conflict with a controlling decision by this court, to which the attention of the court was not called through the inadvertence of counsel for respondent. Haarstick v Gabriel, 200 Mo., l. c. 245.

OPINION

PER CURIAM. --

Respondent insists that we overlooked sections 11,495 and 11,505, Revised Statutes 1909. That contention is an inadvertent error on the part of learned counsel for Mr. Bacon. Both those sections were considered, though not mentioned. We are of opinion that neither of them goes to the question of the sufficiency of the petition on the right to have the tax judgment and sale set aside on the grounds considered in the opinion. Neither section warrants a false judgment for paid taxes, in order to recover costs.

It is further contended that section 11,508, Revised Statutes 1909 (Laws of 1903, p. 254), makes the petition demurrable. That section provides that in a suit to determine title or recover possession of land sold for taxes, etc., the person seeking that remedy shall offer in his petition to refund defendant the taxes paid by him with interest, etc. The next section 11,509, provides that a defendant may plead by way of defense the judgment for taxes and pray that they be declared a lien and that such defense shall not affect the merits of other defenses. On such premises it is argued that plaintiff's bill does not comply with that statute, therefore we should not say that the court erred in refusing to permit the introduction of testimony.

Under the facts of this record defendant paid no taxes at the tax sale and his bid is tendered to him. As to taxes since that time the petition and answer are both silent. So that neither party availed himself of that statute. In such circumstances it is fair to assume that defendant paid no subsequent taxes on the land. Indeed plaintiff, in opposition to the motion for a rehearing, suggests that defendant paid none. As the case is to go down for a hearing, we are not willing to "sacrifice the justice of the matter on the sharp edge of technicality." The statute only applies where taxes have actually been paid by defendant. There is no presumption that defendant had paid any. Shall we make a false assumption of fact in order to cut off plaintiff on a demurrer?

Furthermore it is clear from the admissions of counsel that the ground now urged was not presented...