Meriwether v. Overly

• Court: Missouri Supreme Court
• Writing for the Court: Fox
• Citation: 129 S.W. 1,228 Mo. 218
• Parties: MERIWETHER v. OVERLY.
• Decision Date: 26 May 1910

129 S.W. 1 228 Mo. 218 MERIWETHER
v.
OVERLY. Supreme Court of Missouri, Division No. 2. May 26, 1910.

1. CONSTITUTIONAL LAW (§ 70)—JUDICIAL POWERS—ENCROACHMENT ON LEGISLATURE.

The courts must accept and enforce the statutes as they find them, where they are not unconstitutional and have not been repealed.

2. STATUTES (§ 167)—TAXATION (§ 805)— TAX SALES—LIMITATIONS.

General Revenue Law (Laws 1872, p. 130) § 222, barring in three years any suit against a tax purchaser for the recovery of land sold for taxes, or to avoid a tax sale, was not repealed by the revision of the statutes of 1879, 1889, or 1899, though not carried forward into the Revised Statutes, and hence Kansas City Charter, barring a suit against the purchaser at a tax sale in three years, is not inconsistent with the general law, and is valid.

3. LIMITATION OF ACTIONS (§ 130)—NEW CAUSE AFTER NONSUIT—STATUTES—APPLICABILITY.

Rev. St. 1899, § 4285 (Ann. St. 1906, p. 2357), providing that if any action shall have been commenced within the times "prescribed in this chapter," and plaintiff therein suffer a nonsuit, he may commence a new action within one year after such nonsuit, is a saving clause to prevent the bar of limitations otherwise applicable, but has no application to an action to set aside a tax sale barred by the limitation section of a municipal charter.

4. TAXATION (§ 805)—TAX SALES—ACTIONS— LIMITATIONS.

The statute limiting the time within which to sue to avoid a tax sale applies only where the tax deed is valid on its face.

5. EVIDENCE (§ 17)—JUDICIAL NOTICE—CALENDAR.

The Supreme Court takes judicial notice of the calendar.

6. TAXATION (§ 761)—TAX DEEDS—VALIDITY.

Under Kansas City Charter, art. 5, § 58, requiring the city treasurer on the first Monday in November of each year to offer for sale all real property on which the taxes are unpaid, and continue the sale from day to day so long as there are bidders, etc., a tax deed, which recites that the sale was at an adjourned sale, must also recite that notice of the adjournment was given at the time of the adjournment, and, unless such notice is given, the deed is void on its face, and a deed which recites that on November 6th at an adjourned sale begun on the first Monday of November, which was the first day of the month, the property was sold, is void on its face.

[129 S.W. 2]

7. TAXATION (§ 421)—ASSESSMENT—STATUTES.

Under Kansas City Charter, requiring the assessor to return on his assessment book of real property each parcel of real estate in numerical order as to lots and blocks, described consecutively, an assessment of lot 67 in a subdivision of the city is void, where the land tax book showed that the listing of lots in the subdivision began on page 823 of the land tax book, and began with lot 42 and proceeded in numerical order to lot 63, and that the next lot was lot 70 on page 825, and that lot 67 was described in the tax book on page 834, the assessment of lot 67 was void.

8. TAXATION (§ 658)—TAX SALES—NOTICE— DESCRIPTION.

Under Kansas City Charter, requiring the assessor to return on his assessment book of real property each lot in numerical order described consecutively, and requiring the city treasurer to give notice by publication of a sale for delinquent taxes, which notice shall contain a description the same as in the land tax book, the notice of a tax sale must give the lots consecutively and in numerical order, and where the assessment was in disregard of the requirements of the charter, and the notice did not give the lots consecutively and in numerical order, the notice was ineffectual, and a sale was void.

9. EQUITY (§ 69)—LACHES.

The basis of laches in delay in bringing suit to recover real estate is delay, but the defendant must also have been injured by the delay, and he must have been without knowledge of plaintiff's title, and he must have relied on his own apparent right and made valuable improvements which he would not have made had plaintiff taken timely action to assert his equitable right.

10. TAXATION (§ 805)—TAX SALES—ACTIONS —LACHES.

Where a claimant under a tax deed made no improvements and had notice, before he purchased, of an adverse claim, and of the invalidity of his own tax deed, which was void on its face, delay in suing for the property did not bar relief on the ground of laches.

11. TAXATION (§ 804)—TAX SALES—ACTIONS —LACHES.

Where one claiming title under a tax deed void on its face paid taxes before their maturity, the failure of the holder of a valid tax deed to pay the taxes did not show neglect, and the fact that for several years he did not pay the taxes because the claimant under the void deed made payments before their maturity did not amount to laches defeating a recovery.

12. TAXATION (§ 746)—TAX DEEDS—AUTHORITY TO MAKE.

Under Kansas City Charter, providing that, where property sold for taxes is not redeemed within one year, a deed shall be given by the sheriff to the holder of the certificate of sale, the deed must be executed by the sheriff in office at the time, notwithstanding Rev. St. 1899, § 3216 (Ann. St. 1906, p. 1826), providing that when any officer shall have levied execution, and his term shall expire before or after the sale and before the purchaser has obtained a deed, such officer shall execute the deed.

13. TAXATION (§ 749)—TAX DEEDS—LACHES.

Under Kansas City Charter, providing that, where property sold is not redeemed, a deed shall be given at the end of one year from the date of sale, the earliest date at which a purchaser at a tax sale or his assignee is entitled to a deed is a year after the date of the sale, and the failure of a purchaser to get a deed for something over 13 months does not amount to laches, where others were not misled thereby.

14. TAXATION (§ 509)—TAXATION AGAINST REAL ESTATE.

A tax against real estate subject to taxation is against the property and not against the owner, and the taxes are a lien on the property prior to all other liens.

15. TAXATION (§ 589)—COLLECTION—LIMITATIONS.

Under Rev. St. 1899, § 9313 (Ann. St. 1906, p. 4283), providing that no action for the recovery of taxes against real estate shall be maintained unless commenced within five years after delinquency, state and county taxes legally assessed against real estate for the years 1893 to 1898 were not barred by limitations when they were paid in December, 1898, and the state could have enforced the taxes for those years as authorized by section 9324 (page 4288), no matter who owned the property at the time the assessments were made.

16. TAXATION (§ 800)—ACTION TO QUIET TITLE —TENDER OF TAXES PAID.

Under Laws 1903, p. 254 (Ann. St. 1906, § 9319-1), prohibiting any suit to determine title to property sold for taxes, unless the person seeking to recover the land shall offer to refund to defendant all taxes paid by him, etc., plaintiff suing to quiet title must reimburse defendant for taxes paid by him in good faith, and those paid by his predecessor in title in good faith, to which defendant has become subrogated; but plaintiff need not reimburse defendant for any taxes paid by him as a mere volunteer.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by H. M. Meriwether against Joseph Overly. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

On October 13, 1903, the plaintiff brought suit in the circuit court of Jackson county to quiet title to the following lands: "Beginning at the southeast corner of lot 67, Hurck's subdivision of Guinotte's Bluff; thence west along the south line of said lot 200 feet; thence north 180 feet; thence west 100 feet; thence north 164.67 feet; thence east 275 feet; thence south 125 feet; thence east 25 feet; thence south 219.67 feet, to the beginning, being a part of lot 67, Hurck's subdivision of Guinotte's Bluff, an addition to Kansas City, Missouri." The petition closes with the prayer that the court "ascertain and determine the

[129 S.W. 3]

estate, title, and interest of the plaintiff and defendant, respectively, in and to such real estate, and to define and adjudge by its judgment and decree the estate, title, and interest of the parties severally therein, as provided by section 650, Rev. St. 1899 [Ann. St. 1906, p. 667]." The answer was first a general denial, then a plea that the defendant was the owner of the property in fee simple by virtue of a tax sale for city taxes of Kansas City, made by the city treasurer on the 6th day of November, 1897, and a deed in pursuance to said tax sale made on December 18, 1899. It also pleads that defendant, since said tax sale, has paid taxes on said land since the year 1893 up to the year 1901. It also pleads the statute of limitations as a bar to the suit, and pleads laches.

The facts are about as follows: Plaintiff's title is derived through a certain judgment upon a special tax bill for the building of a sewer. In 1892 twelve persons, among them Thomas King, who is admitted to have been the owner of the property in suit, brought suit to have declared void the ordinance establishing the sewer district and providing for the construction of a sewer therein. The defendants were Duer, the contractor, and the International Loan & Trust Company, to whom the tax bills had been assigned. Judgment therein was rendered in favor of plaintiff, and the cause was appealed to this court. Johnson v. Duer, 115 Mo. 366, 21 S. W. 800. That judgment was reversed on the appeal, and the tax bills were sustained, the cause was remanded for a new trial, and on the new trial judgment was rendered in behalf of the plaintiffs. Execution issued for the enforcement of the tax bill, which amounted to $2,582, and on December 5, 1896, under and pursuant to the special execution in that cause John P. O'Neill, sheriff of Jackson county, sold the property to the International Loan & Trust Company and issued to said trust company a sheriff's certificate of sale, which was filed for record...