Mitchell v. Atherton

• Decision Date: 13 March 1978
• Docket Number: No. 59636,59636
• Citation: 563 S.W.2d 13
• Parties: E. Decatur MITCHELL, Respondent, v. L. E. ATHERTON et al., Defendants, Dave C. Mitchell, Appellant.
• Court: Missouri Supreme Court

Page 13

563 S.W.2d 13

E. Decatur MITCHELL, Respondent, v. L. E. ATHERTON et al., Defendants Dave C. Mitchell, Appellant.

No. 59636.

Supreme Court of Missouri, En Banc.

March 13, 1978.

Rehearing Denied April 10, 1978.

William Hiett, R. M. Becker, John S. Beeler, Hiett, Becker & Beeler, Houston, for appellant.

Maurice Covert, Houston, F. Joe DeLong, III, Jefferson City, for respondent.

BARDGETT, Judge.

Defendant-appellant, Dave C. Mitchell, appeals from the judgment of the circuit court which quieted title to a certain parcel of real estate in plaintiff-respondent, E. Decatur Mitchell. The parties will be referred to as they appeared in circuit court. Defendant asserts jurisdiction is in this court because art. 10, sec. 13, Mo.Const., was the basis upon which the trial judge entered up judgment for quieting title in plaintiff. The circuit court held that art. 10, sec. 13, prohibits property from being sold for taxes unless the notice of sale contains the names of all record owners.

Defendant contends that art. 10, sec. 13, does not prohibit the sale of real property for taxes unless the notice of sale contains the names of all record owners thereof. This constitutional provision has not previously been construed. Jurisdiction of the appeal is in this court. Mo.Const., art. 5, sec. 3.

Plaintiff E. Decatur Mitchell filed suit November 30, 1973, to quiet title in himself to an 80-acre tract located in Texas County, Missouri. Plaintiff claims by a deed dated September 18, 1944, recorded October 15, 1945, from his father A. D. Mitchell and Virginia Mitchell, A. D.'s wife, to plaintiff E. Decatur Mitchell. A. D. Mitchell had previously acquired the tract from his brother, P. E. Mitchell, by deed dated June 17, 1943, recorded June 22, 1943. P. E. Mitchell was the father of defendant Dave C. Mitchell. Plaintiff and defendant are first cousins. The validity of plaintiff's deed is not in issue.

The only defendant who answered the petition was appellant Dave C. Mitchell who claimed title to the tract by a "Treasurer and Ex Officio Collector's Deed" for taxes, dated September 21, 1953, recorded September 24, 1953. This deed recited that Dave C. Mitchell had exhibited a certificate of purchase to the tract which he obtained by buying the same at public auction at the Texas County courthouse door on August 27, 1951, "for the sum of Ninety dollars and no cents, being the amount due on the following tracts or lots of land, returned delinquent in the name of P. E. Mitchell for non-payment of taxes, costs and charges for the years 1948 namely: (description of property)." The deed then continues: "which said lands have been recorded, among other tracts, in the office of said Treasurer and Ex-officio Collector, as delinquent for the non-payment of taxes, costs, and charges due for the year last aforesaid, and legal publication made of the sale of said lands; and it appearing that the said Dave C. Mitchell is the legal owner of said certificate of purchase and the time fixed by law for redeeming the land therein described having now expired, the said P. E. Mitchell, nor any person in his behalf having paid or tendered the amount due the said Dave C. Mitchell on account . . . ."

A. D. Mitchell and his son, plaintiff E. Decatur Mitchell, lived in the state of California throughout this period. P. E. Mitchell lived in Texas County, Missouri, as did his son, defendant Dave C. Mitchell, except that Dave lived in the state of California from 1937 to 1947. Plaintiff testified his uncle P. E. Mitchell looked after the taxes for him. Plaintiff testified he paid the taxes on the property from the time he acquired title until 1973, except perhaps for 1948, in one of three ways: (1) the tax bills were sent to him by P. E. Mitchell and paid directly by plaintiff, (2) P. E. Mitchell would pay the taxes and plaintiff would reimburse P. E. Mitchell, or (3) in later years the tax bills were mailed direct to plaintiff by the collector and were paid directly by plaintiff. Plaintiff's best recollection was that the subject tract was not included in the tax statement he received for 1948 and that he wrote to P. E. Mitchell about that matter.

Defendant testified he bought the certificate of purchase in 1951. He paid no taxes on the land until November 1973. This suit was instituted November 30, 1973. Defendant has paid the taxes during the pendency of this case.

The circuit court made findings of fact and conclusions of law. It found, inter alia, that: Plaintiff's title from 1944 to 1953 was not and is not disputed; plaintiff paid the taxes from 1944 until 1973, except for 1948; plaintiff attempted to pay the 1973 taxes and learned that defendant had paid them; "The Court cannot make a finding as to payment of the 1948 taxes. The evidence is insufficient as to the payment of these taxes (the Plaintiff testified he recalled that there was some dispute about the 1948 taxes but he could not recall whether he paid the 1948 taxes or not; he did know that he had paid up to 1948 and from 1948 to 1973. The Court cannot infer that the taxes were paid for the year 1948; neither can the Court infer that the taxes were not paid from the fact that the collector's deed recites that the land was sold for taxes due for the year 1948. There is no dispute that Plaintiff was the record owner in 1948 and prior thereto. If the collector erred in reciting that the 1948 taxes were returned delinquent in the name of P. E. Mitchell rather than in the name of the record owner (Plaintiff) then it could be inferred that an error was made and the taxes for 1948 were paid and were not delinquent.)"; plaintiff was the record owner of the land from 1944 to present and was the record owner in 1948; defendant has paid $95.17 for taxes in years 1973, 1974, 1975, and "Since the tax deed recites that the 1948 taxes were returned delinquent in the name of P. E. Mitchell, the Court finds by inference (there being no other evidence) that the notice of sale, if any, did not contain the names of the record owners."

The court concluded, inter alia, that the "1945 Missouri Constitution, Article 10, Section 13 prohibits real property from being sold for taxes unless the notice of sale contains names of all record owners, also Section 140.170 VAMS," and, therefore, decreed:

"The deed describing the Southeast Quarter of the Northwest Quarter and the Northeast Quarter of the Southwest Quarter of Section 24, Township 33 North, Range Eight West lying and being in Texas County, Missouri purporting to convey said land to Defendant Dave C. Mitchell by Walter J. Beeler, the treasurer and ex-officio collector of Texas County, dated September 1, 1953 and recorded in book 219 page 296 of the Texas County deed records, is void and of no legal effect and Defendant Dave C. Mitchell has acquired no right, title or interest in or to the land described therein by reason thereto.

"It is the further decree of this Court that the Plaintiff is the sole owner in fee simple of the land described as the East half of the Northwest Quarter and the Northeast Quarter of the Southwest Quarter all in Section 24, Township 33 North, Range Eight West in Texas County, Missouri.

"And that none of the Defendants have any right, title or interest in or to said described land and title to said land is quieted in Plaintiff.

"It is further the order and judgment of this Court that Defendant Dave C. Mitchell have and recover of the Plaintiff the sum of $95.17 being the amount of taxes paid by said Defendant for the years of 1973, 1974 and 1975.

"Costs taxed to Plaintiff."

The foregoing determination that the tax deed under which defendant claimed title was void was premised upon a finding that, because the tax deed recited only the name, "P. E. Mitchell", and omitted plaintiff's name, E. Decatur Mitchell, the notice of sale, if any, failed to contain the names of all record owners of the property, in contravention of art. 10, sec. 13, Mo.Const., which provides: "No real property shall be sold for state, county or city taxes without judicial proceedings, unless the notice of sale shall contain the names of all record owners thereof, or the names of all owners appearing on the land tax book, and all other information required by law."

Prior to 1945, no similar statutory or constitutional provision existed. In fact, sec. 11125, RSMo 1939, which was in effect until 1945, provided: "(I)t shall not be necessary to include the name of the owner, mortgagee, occupant or any other person or corporation owning or claiming an interest in or to any of said lands or lots in the notice of such sale . . . ." Secs. 140.150 and 140.170,...