Mangold v. Bacon

• Decision Date: 27 November 1911
• 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 ^[*]

Rehearing Denied 237 Mo. 496 at 544.

Appeal from Butler Circuit Court. -- Hon. J. C. Sheppard, Judge.

Reversed and remanded (with directions).

David W. Hill for appellant.

(1) The payment of the taxes by appellant extinguished the State's lien and this being a direct proceeding to set aside the back tax judgment and back tax deed, the payment of the taxes and all other facts and circumstances in the case were properly pleaded. R. S. 1899, sec. 9266; Harness v Cravens, 126 Mo. 233; Hampton v. McClanahan, 143 Mo. 501; City of Aurora ex rel. v. Lindsay, 146 Mo. 509; Huber v. Pickler, 94 Mo. 387; Hoge v Hubb, 94 Mo. 503; McClure v. Logan, 59 Mo. 234. (2) It has been uniformly held by this court that when the price realized at a public judicial sale of real estate is so inadequate as to shock the moral sense and outrage the conscience, the courts will interfere to promote the ends of justice and on that ground alone set aside the sale. Guinan v. Donnell, 201 Mo. 202; Yeaman v. Lepp, 167 Mo. 61; Davis v. McCann, 143 Mo. 172; Corrigan v. Schmidt, 126 Mo. 313; Knoop v Kelsey, 121 Mo. 642; Gordon v. O'Neil, 96 Mo. 350; Holden v. Vaughan, 64 Mo. 598; Mitchell v. Jones, 50 Mo. 438; Railroad v. Brown, 43 Mo. 294; Byers v. Surget, 60 U.S. (19 How.) 311; State v. Elliott, 114 Mo.App. 566; 24 Cyc. 39; Lankford v. Jackson, 21 Ala. 650; Daly v. Ely, 51 N.J.Eq. 104; Banning v. Pendery, 7 Ohio Dec. 677; Hardin v. Smith, 49 Tex. 420; Sinnett v. Cralle, 4 W.Va. 600. (3) R. S. 1899, sec. 9244, provides that a book of delinquent lands shall be kept by the collector, which was done in this case and the taxes entered paid on this book long before the sale, which was notice to the purchaser. (4) The respondent is not an innocent purchaser for value and without notice. The law conclusively presumes that the respondent, as a purchaser at a public sale, had notice of all the facts pleaded by plaintiff, if the defendant does not affirmatively set up and prove the plea of "innocent purchaser for value and without notice." There is no such plea or proof in this case. Holdsworth v. Shannon, 113 Mo. 524; Young v. Schofield, 132 Mo. 650. (5) Only a fee bill could have been issued against Mangold for the costs of the tax suit, which could not have served as an execution until after thirty days after demand, and the amount of the execution in this case was never demanded. R. S. 1899, sec. 3236. (6) This is the second appeal. Ordinarily the decision of the first appeal would settle the law of this case, but where there are clear and cogent reasons for not following a former decision in the same case this court, on a second appeal, may overrule its decision on the first appeal, and we earnestly insist that the majority opinion of this court especially on the question of gross inadequacy of consideration being out of harmony with this court's former rulings and out of harmony with the United States Supreme Court and the weight of authority in the other states ought to be overruled for the very clear and cogent reasons as stated in the opinion of Lamm, J., in this case when it was before this court the first time. Citizens National Bank v. Donnell, 195 Mo. 564.

James F. Green and Ernest A. Green for respondent.

(1) Plaintiff's petition wholly failed to state a cause of action and the trial court rightly so held. Mangold v. Bacon, 229 Mo. 459; Evarts v. Mo. Lumber & Mining Company, 193 Mo. 433; Hill v. Sherwood, 96 Mo. 190; Gibbs v. Southern, 116 Mo. 204; Newman v. Mercantile Trust Co., 189 Mo. 423; Martin v. Castle, 193 Mo. 183; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388; State ex rel. v. Terminal Railroad Association, 182 Mo. 284; Smoot v. Judd, 184 Mo. 508; Schiffman v. Schmidt, 154 Mo. 204; Nagel v. Railroad, 167 Mo. 89; Walters v. Hermann, 99 Mo. 529; Sidway v. Missouri, etc., Co., 163 Mo. 342. (2) The trial court's judgment was right-fully for the defendant. The title of a purchaser under a judgment for back-taxes cannot be defeated by showing that the taxes for which the judgment was rendered had been paid before the judgment was rendered. A judgment in a tax suit cannot be collaterally attacked by one who is a defendant in that suit and who was properly brought in by personal service. Mangold v. Bacon, 229 Mo. 459; Evarts v. Mo. Lumber & Mining Co., 193 Mo. 433; Hill v. Sherwood, 96 Mo. 125; Jones v. Driskill, 94 Mo. 190; Gibbs v. Southern, 116 Mo. 204. (3) Inadequacy of consideration alone is not a sufficient ground for setting aside a tax sale. Tax sales under tax judgments are not different from other judicial sales. Mangold v. Bacon, 229 Mo. 459; Walker v. Mills, 210 Mo. 684; Derby v. Donahoe, 208 Mo. 706; Welch v. Mann, 139 Mo. 327; State ex rel. v. Elliott, 114 Mo.App. 562; Martin v. Castel, 193 Mo. 183; Cubbage v. Franklin, 62 Mo. 364; Wagner v. Phillips, 51 Mo. 117; Hammond v. Scott, 12 Mo. 8; Gordon v. O'Neil, 96 Mo. 350; Bryant v. Jackson, 99 Mo. 585; Cobb v. Day, 106 Mo. 278; Phillips v. Stewart, 59 Mo. 491; Waters v. Herman, 99 Mo. 529; Landrum v. Bank, 63 Mo. 48; Duncan v. Sanders, 43 Mo. 29; Holden v. Vaughn, 64 Mo. 590; Brown v. Railroad, 43 Mo. 297. (4) The opinion of this court on the former appeal is the law of this case; that opinion is res adjudicata as against appellant herein. Mangold v. Bacon, 229 Mo. 459; McGrew v. Railroad, 118 Mo.App. 379; Harburg v. Arnold, 87 Mo.App. 326; Rigsby v. Oil Well Supply Co., 130 Mo.App. 128; Viertel v. Viertel, 212 Mo. 562.

LAMM J. Graves, J., dissents in an opinion to be hereafter filed.

OPINION

In Banc

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 forty acres of land in Butler county (the southeast quarter of the southwest 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 forty -- 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 forty, 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 forty 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 forty 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 forty 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 $ 1200. 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 amendment into the original bill after the cause went down. So, the following quoted and underscored averment is an amendment made at the same time.) "Plaintiff further states that all proceedings in said back tax suit had after the payment of the taxes sued for...