McAnally v. Little River Drainage Dist.

• Decision Date: 03 June 1930
• Docket Number: 29948
• Citation: 28 S.W.2d 650,325 Mo. 348
• Parties: John A. McAnally, Appellant, v. Little River Drainage District and Elk Chute Drainage District
• Court: Missouri Supreme Court

28 S.W.2d 650

325 Mo. 348

John A. McAnally, Appellant, v. Little River Drainage District and Elk Chute Drainage District

No. 29948

Supreme Court of Missouri

June 3, 1930

Motion for Rehearing Overruled June 3, 1930.

Appeal from Dunklin Circuit Court; Hon. W. S. C. Walker Judge.

Affirmed.

John A. McAnally for appellant, pro se.

(1) The lien of the State for general taxes is paramount. Sec. 12757 R. S. 1919; Fleckenstein v. Baxter, 114 Mo. 493; 37 Cyc. 1475, 1476; Verdery v. Dotterer, 69 Ga. 194; Indianapolis v. City Bond Co., 42 Ind.App. 470; Douglass v. Towell, 64 Kan. 533. The lien of the Drainage District is created upon the filing of the certificate in the office of the Recorder of Deeds. Sec 4399, R. S. 1919. And is subject to the paramount lien of the State. Sec. 4399, R. S. 1919; Missouri Real Estate & Loan Co. v. Burri, 202 Mo.App. 242; McCollum v. Uhl, 128 Ind. 304. (2) A sale under the paramount lien, extinguishes all other liens and interests, if the owners thereof were made parties to the action. Cases cited above; Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 472; Paxton v. Fix, 190 S.W. 328.

Dearmont & Russell, Amici Curiae.

(1) Under Missouri law, taxes are encumbrances within the meaning of the covenants contained in the words "grant, bargain and sell" in a conveyance of land, from the date of the assessment of the tax. Blossom v. Van Court, 34 Mo. 390; State ex rel. v. Harper, 83 Mo. 670; McLaren v. Sheble, 45 Mo. 130. (2) The lien of the State for taxes takes precedence over and is superior to all other, whether prior or subsequent. Stafford v. Fizer, 82 Mo. 393. (3) The lien of the assessment of benefits for street improvements, and of the judgment thereunder, attaches as of the date of the approval of the ordinance, and constitutes an incumbrance for which the covenantor must answer to the covenantee who discharges such lien, although the amount of such lien was not ascertained until after the making of the covenant, the covenantee in the meantime having had and enjoyed the property. Barnhart v. Hughes, 46 Mo.App. 318. (4) Section 4400, Laws 1927, page 181, affords drainage districts ample opportunity to protect their liens in the event the paramount lien of the State is foreclosed. If the lien of the drainage district does not come into existence until the annual installments are levied and certified, this amendment to the charter of the drainage district was entirely unnecessary. (5) The Legislature of this State has always recognized this principle and has made the lien for drainage taxes always subject to the paramount lien of the State. Mo. Real Estate & Loan Co. v. Burri, 202 Mo.App. 244; McCollum v. Uhl, 128 Ind. 308. The drainage law under which the respondents are operating, as well as the "County Court" law, were copied largely from the drainage laws of Indiana, and the decision of the courts of that state should have great weight. (6) A sale of land for general taxes cuts off all earlier liens for unpaid special assessments. Bennett v. City and County of Denver, 197 P. 768; Wilson v. Korte, 157 P. 47; McMillan v. Tacoma, 67 P. 68; Keene v. Seattle, 71 P. 769; Ballard v. Way, 74 P. 1067; Penn Company v. Tacoma, 79 P. 306; Black on Tax Titles (2 Ed.) 420. When the State forecloses its lien for general taxes and sells the property to a private individual, it initiates and creates a new title to the property, which the private individual takes free and clear of any kind or character of prior liens. Maryland Realty Co. v. Tacoma, 209 P. 1; Collins v. City of Spokane, 212 P. 150. (7) Liens for special assessments against lots sold by the state for general taxes cannot be restored nor lots reassessed, but purchasers take them free of such assessments. Lovelace v. City of Chehalis, 233 P. 301. (8) If Section 4399 means anything at all, it creates a lien for all taxes which Section 4394 requires the board of supervisors of drainage districts to levy, without any unnecessary delay, as soon as the list of lands and other property, with the assessed benefits and the decree and judgment of court, have been filed in the office of the County Recorder as provided in Section 4392. Section 4399 is the only section which creates a lien and is evidently the lien referred to in Section 4400-a, Laws 1927, page 181. (9) Liens for special assessments must be created by a statute. Marsh v. Byrd, 22 F. 180; Fisher v. Brower, 159 Ind. 139; State v. Bellin, 79 Minn. 134; Philadelphia v. Anderson, 142 Pa. St. 357. (10) The laws under which special liens exist must be strictly construed. 37 C. J. 309; Salem v. Smith, 22 Wash. 397; Jeffry & Company v. Anderson, 66 Iowa 718. (11) Section 4395, which provides for the levy of the amount of the annual installment of the total taxes levied under Section 4394, does not create or attempt to create any lien. The purpose and only purpose of this section is to provide a method whereby the lien created by Section 4395 may be enforced. The certificate provided for in that section, which is attached to the drainage tax book delivered simultaneously, constitutes the warrant and authority of the collector for making demand and collecting the taxes therein set forth, just as a delinquent back-tax book is the warrant or authority for a collector to institute suits for the recovery of delinquent taxes. Neither has anything to do with the lien which is already in existence by force of other statutes.

Ward & Reeves and Oliver & Oliver for respondents.

(1) The district's lien for taxes is created by the statute. It provides for the levy of what is called "the total tax;" also the levy, certification and collection of the "annual installments" thereof. It also provides for the levy and collection of a maintenance tax. The last General Assembly expressly provided that notwithstanding land was sold for state and county taxes it shall remain subject to subsequent drainage and levee taxes. Sec. 4394, R. S. 1919, providing for levy of estimated total tax; Sec. 4399, R. S. 1919, providing for filing of certificate of total tax in Recorder's office; Sec. 4395, R. S. 1919, providing for levy of annual installment of total tax; Sec. 4418, R. S. 1919, providing for payment of bonds and interest and limitations as to use of money so collected; Sec. 4419, R. S. 1919, providing for levy of maintenance tax; Sec. 4400, R. S. 1919, providing that sale by the district one year shall not destroy the lien of the district for subsequent years; Sec. 2, Laws 1929, p. 180, expressly saving the lien of the district in event of sale by State. (2) The levy of the total tax which is filed in the Recorder's office is not self-enforcing and does not of itself create a lien. It constitutes constructive notice to the landowner of the estimated amount of benefits that, in the opinion of the board, will be required to pay the costs of construction of the works of the district. The Board must "each year thereafter" determine, order and levy such portion of the installment tax as, in their opinion, is required to meet the obligations of the district, in order to constitute it an enforceable lien or bring that portion of the total tax into being. The levy of the total tax is not of itself sufficient to constitute an enforceable lien. It is the levy of each annual installment that constitutes an enforceable lien. Each year's annual levy constitutes a separate enforceable lien. The district's annual levy to collect the subsequent annual installments arising after 1926, being necessarily made after the sale of the land in question in 1926 for state and county taxes, is unaffected by the sale so held. The levy of the annual installment for the year 1935, for example, has not yet been made and is, therefore, not affected. The lien of the district, for all years subsequent to the 1926 annual installment, is in no way impaired. It could not be, for it has not yet come into being. Elsberry Drainage District v. Winkelmeyer, 278 Mo. 268, 212 S.W. 893; Little River Drainage District v. Sheppard, 7 S.W.2d 1013; Sec. 4400, R. S. 1919. (3) This case falls within the provisions of Section 2 of the Act of June 11, 1929 (Laws 1929, p. 178), providing that all lands sold for state and county taxes shall thereafter remain subject to the lien of drainage and levee districts for subsequent drainage and levee taxes. If any doubt previously existed as to the conclusion to be reached in this case, this section removed it. The power of taxation is inherent in the Legislature. It is supreme, being subject only to the limitations imposed by the Constitution. No such limitations are urged against the section. Sec. 1, Art. X, Mo. Constitution; In re Sanford, 236 Mo. 685; Houck v. Little River Drain. Dist., 248 Mo. 373. (4) The defendants' position is supported by the courts of last resort of other states when they were interpreting statutes of similar purpose and intent. Baldwin v. Frisbie, 270 P. 1025; City of Tacoma v. Fletcher Realty Co., 272 P. 43; Hunt v. City of St. Maries, 260 P. 155 (Idaho) ; Turley v. St. Francis County Road Dist., 287 S.W. 196.

OPINION

Gantt, J.

Suit to quiet title. The case was submitted on motions of the parties for judgment on the pleadings. Judgment for the defendants, and plaintiff appealed.

Appellant purchased the land at a sale for state and county taxes for the year 1926. He claims under the sheriff's deed. The land is located in Dunklin County and in both the Little River and Elk Chute Drainage Districts. The Little River District was organized in 1907, and the Elk Chute District in 1922, both as circuit court drainage districts. Benefits were assessed against the land in suit and other lands. The assessments were confirmed by the circuit court. Thereafter, the Little River District levied a total tax of...