Morton v. Reeds

CourtUnited States State Supreme Court of Missouri
Writing for the CourtMCGIRK
Citation6 Mo. 64
PartiesMORTON v. REEDS.
Decision Date31 October 1839

6 Mo. 64

MORTON
v.
REEDS.

Supreme Court of Missouri.

October Term, 1839.


[6 Mo. 65]

APPEAL FROM LINCOLN CIRCUIT COURT.

BATES, for Appellant.

1st. The auditor's sale to Suggett for the non-payment of taxes, &c., is illegal and void; because, 1st. The proceeding being by special act, in derogation of common right, the statute itself must be strictly construed against the power. 2nd. The proceeding being ex-parte and under a special authority, the greatest strictness is required; nothing can be presumed in favor of the act, but every requisite of the law must be shown to have been complied with. Peters' R. 349; 5 Cond. R. 28; 2 Cond. R. 151, and authorities collated, at the end of that case; 4 Cond. R. 395; 19 Johns. R. 7.

2nd. The certificate of the auditor, under the act of 3rd January, 1827, cannot help out the defendant's title, because, 1st. The certificate is not such as the law requires; it states broadly that the requisites of the law have been complied with, whereas it should have stated the facts, and have left the court to judge what the law requires. 2nd. The certificate, if in the best form, could only authorize the acts of which the officer had official cognizance, and not acts foreign to his office, as is claimed by the defendant here. U. S. v.

[6 Mo. 66]

Jones, Adm'r of Owen, 8 Peters' R. 375; 1 Mo. R. 537; 2 Bibb, 573; Acts of 1826-7, p. 149.

3rd. There is no proof in any part of the proceedings, that Paul Chouteau, the former owner of the land, was a non-resident of the county, and if not a non-resident, the auditor had no power to sell. Rev. Code. 1825, p. 676, § 36.

4th. Assessment for taxation is a necessary pre-requisite. If it exists at all, it must be of record in the county, and is not the subject of proof by the auditor's certificate, yet there is no proof of that fact. Assessor to value property, &c., Rev. Code, 1825, p. 667, § 11. To make general assessment lists, p. 669, § 17, to be corrected by the court, &c., § 18, 19.

5th. There is no proof of any legal advertisement of the auditor's sale, and 1st. The copy in the record is defective in itself, and there is no proof of its being printed and published. 2nd. There is a total absence of proof that three copies of the advertisement were sent to the sheriff of Lincoln county, and by him set up, as required by the act of 18th January, 1831, § 4.

6th. By the copy of advertisement and certificate of purchase contained in the record, it appears that the auditor sold the land not only for taxes and penalties but for interest and costs which was illegal.

7th. It appears by the record that the land was sold not only for State and County taxes, interest, penalties and costs, but for two additional taxes imposed by the act of 3rd January, 1827, § 20, which additional taxes were illegal, not being in proportion to the value of the land. See Constitution, article 13th, § 19.

8th. The land could not be sold for the non-payment of taxes, even supposing the owner a non-resident of the county, until there was an ascertained defect of personal property. See Rev. Code of 1825, §§ 21 to 28, title Revenue. By the 27th section the collector had a general power to distrain goods.

9th. But if no such power to distrain were expressly granted, it is a necessary incident to the power and duty to collect the taxes.

10th. The goods being first liable, the land could not be sold without

[6 Mo. 67]

official return or statement (and that on the record) of nulla bona: 2 Cond. R. 151; 5 Cond. R. 28; 4 Peters' R. 366.

11th. Supposing all the legal prerequisites fulfilled, still the whole tract could not be sold, but only so much as necessary; Rev. Code of 1825, Revenue. p. 677, § 36; 2 Cond. R. 151. And the 17th section of same act fixed the minimum rate of assessment at $1 25 per acre, which bound the State both as legislator and as contracting party. Rev. Code, 1825, p. 670, § 17.

12th. Supposing the auditor's sale formal and regular, still the defendant's title deeds are invalid and as against the plaintiff for want of record. See date of the recording of the deeds, and Rev. Code of 1825, p. 674, § 28, same Code, p. 221, § 14.

13th. The instructions asked and refused on the part of the plaintiff are covered by the foregoing points.

14th. The instructions given on the part of the defendant are plainly wrong, and 1st. The first instruction leaves to the jury a question purely of law. 2nd. The second and third take from the jury every question of law and fact, and assume the whole case.

JAMESON, for Defendant.

1st. That the power to enact laws for levying, assessing and collecting taxes to support the government necessarily implies the power to prescribe the manner and form by which those taxes shall be coerced, if not paid in conformity to law; and also necessarily implies the power to prescribe what evidence shall be sufficient, and what prima facie sufficient to show a good and valid title in the purchaser of lands sold for taxes due thereon.

2nd. That the land in question was regularly sold according to law, as the property of a non-resident. See Record and Revenue laws.

3rd. That the auditor's certificate is in accordance with the provisions of the law. See the Record and also pages 49 and 50 of the Revenue act of 1826-7.

4th. That if the land is not redeemed in two years from the date of sale,

[6 Mo. 68]

the title vests in purchaser. See Digest of 1825, pages 675-6-7 and 8; 18 Johns. R. 441; 2 Peters' Cond. R. 151.

5th. That an officer is presumed to have done his duty until the contrary is proved. 3 Starkie, 1249; Buller's Nisi Prius, 298; Viner's Abr. title, Evidence; Hardin's R. 362.

6th. That the Revenue law in the Digest of 1825 gave the selling of non-residents' lands for taxes to the auditor and treasurer, but the act of 1829, page 37, gave it to the auditor alone (18 Johns. R. 441); Revenue laws of 1825, in relation to assessment. Sec. 2, county court to appoint assessor; 3rd, to take oath, penalty, &c.


MCGIRK, J.

Morton, the plaintiff, brought an action of ejectment against the defendant in the Circuit Court of Lincoln county to recover possession of a tract of land, lying in that county, containing two thousand arpents. The defendant pleaded not guilty. On the trial, the plaintiff produced a title or deed from one Paul Chouteau to himself for the land, and also showed the land had been granted to Chouteau by the Spanish Government, and confirmed by the American Government. To defeat the plaintiff's right to recover, the defendant sets up title in himself by a deed from one Joseph Suggett to him, and then shows a deed from the Auditor of Public Accounts of the State to Suggett, with the certificate of the auditor that the tract of land was sold to Suggett for taxes due the State. There was other evidence in the case, and on the trial the defendant had judgment, to reverse which the plaintiff prosecutes his writ of error. I will now proceed to detail the balance of the testimony, and state the points and objections, as they occurred in the Circuit Court. The land was sold for taxes due for the year 1831. The defendant gave in evidence to support his defense, a certificate of Elias Barcroft, Auditor of Public Accounts for the State, in substance, as follows, to-wit: I do hereby certify that the collector of the county of Lincoln did deliver, according to law, to the said auditor a list containing the following described tract, lot or parcel of land, lying in

[6 Mo. 69]

said county (then the tract is described) which tract or lot was assessed and taxed in the name of said Paul Chouteau, as a non-resident of said county, for the year 1831, with the sum annexed thereto as a State and county tax due thereon and unpaid, for the year 1831. Signed, E. Barcroft, Auditor. The auditor then charges the amount of the State and county taxes, amounting to about the sum of nine dollars; he also charges thereon as a tax twenty-five cents for the State and twelve and one-half cents for the county, as the tax law requires him to do. The certificate then further goes on and says, “and the amount of taxes not having been paid on or before the first day of December, 1831, nor were the taxes or interest, accrued thereon since, paid on or before the same was advertised for sale, whereupon the said auditor did, by advertisement dated on the 10th day of April, 1832, advertise, according to law, the aforesaid tract of land for sale to satisfy the taxes, penalties and costs, due and unpaid, to be sold on the 15th day of June, 1832, at the door of the auditor's office; reference being had to the record of the same, at the recorder's office of said county of Lincoln, will more fully appear, and that on the 15th day of June, the said State and county taxes, and interest being still unpaid, the said auditor then charged, in addition to the taxes as assessed, at the rate of five per centum per month thereon, from the first day of December, 1831, amounting together to the sum herein expressed and costs, and I did thereupon expose to public sale, on the 18th day of June, 1832 (continuing the sale from day to day) at the door of said auditor's office, pursuant to law, and the advertisement aforesaid, the following described tract, lot or parcel of land, or so much thereof, as was sufficient to satisfy and pay the taxes, penalties and costs then...

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19 practice notes
  • Bussen Realty Co. v. Benson, No. 37180.
    • United States
    • United States State Supreme Court of Missouri
    • March 10, 1942
    ...pursued and also strictly proved" because otherwise a man may be deprived of his property contrary to the constitution. [Morton v. Reeds, 6 Mo. 64.] Later, in another appeal of the same case, we first touched on the element of inadequacy of consideration at a tax sale. The tax law then was ......
  • Cabell v. Grubbs
    • United States
    • United States State Supreme Court of Missouri
    • August 31, 1871
    ...v. St. Louis, 31 Mo. 264; Farrar et al. v. Dean, 24 Mo. 16; Reeds v. Morton, 9 Mo. 287; Crook v. Peebly, 8 Mo. 344; Morton v. Reeds, 6 Mo. 64; Lind v. Clemens, 44 Mo. 540; Leslie v. St. Louis, 47 Mo. 474; Maupin et al. v. Emmons et al., 47 Mo. 304, and cases under second point; Durrossett's......
  • Rogers v. City of St. Charles
    • United States
    • Court of Appeal of Missouri (US)
    • November 14, 1876
    ...45 Mo. 290; Cloon v. Beattie, 46 Mo. 391; Bersch v. Schneider, 27 Mo. 101; Hamberger v. Pacific R. R. Co., 43 Mo. 196; Morton v. Reid, 6 Mo. 64, 74; Leslie v. City of St. Louis, 47 Mo. 474; Anderson v. City of St. Louis, 47 Mo. 479; Lind v. Clemens, 44 Mo. 540; Fowler v. City of St. Joseph,......
  • Liddy v. St. Louis R.R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • March 31, 1867
    ...jury if it had given either of them-- Huelsenkamp v. Citizens' Railw. Co., 34 Mo. 45, and [40 Mo. 518]37 Mo. 537; 19 Conn. 566; 33 Mo. 202; 6 Mo. 64; 10 Allen, 535; Meyer v. Pacific R. R., ante 153. The law was properly and fully declared in the instruction given, and it was not error to re......
  • Request a trial to view additional results
19 cases
  • Bussen Realty Co. v. Benson, No. 37180.
    • United States
    • United States State Supreme Court of Missouri
    • March 10, 1942
    ...pursued and also strictly proved" because otherwise a man may be deprived of his property contrary to the constitution. [Morton v. Reeds, 6 Mo. 64.] Later, in another appeal of the same case, we first touched on the element of inadequacy of consideration at a tax sale. The tax law then was ......
  • Cabell v. Grubbs
    • United States
    • United States State Supreme Court of Missouri
    • August 31, 1871
    ...v. St. Louis, 31 Mo. 264; Farrar et al. v. Dean, 24 Mo. 16; Reeds v. Morton, 9 Mo. 287; Crook v. Peebly, 8 Mo. 344; Morton v. Reeds, 6 Mo. 64; Lind v. Clemens, 44 Mo. 540; Leslie v. St. Louis, 47 Mo. 474; Maupin et al. v. Emmons et al., 47 Mo. 304, and cases under second point; Durrossett's......
  • Rogers v. City of St. Charles
    • United States
    • Court of Appeal of Missouri (US)
    • November 14, 1876
    ...45 Mo. 290; Cloon v. Beattie, 46 Mo. 391; Bersch v. Schneider, 27 Mo. 101; Hamberger v. Pacific R. R. Co., 43 Mo. 196; Morton v. Reid, 6 Mo. 64, 74; Leslie v. City of St. Louis, 47 Mo. 474; Anderson v. City of St. Louis, 47 Mo. 479; Lind v. Clemens, 44 Mo. 540; Fowler v. City of St. Joseph,......
  • Liddy v. St. Louis R.R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • March 31, 1867
    ...jury if it had given either of them-- Huelsenkamp v. Citizens' Railw. Co., 34 Mo. 45, and [40 Mo. 518]37 Mo. 537; 19 Conn. 566; 33 Mo. 202; 6 Mo. 64; 10 Allen, 535; Meyer v. Pacific R. R., ante 153. The law was properly and fully declared in the instruction given, and it was not error to re......
  • Request a trial to view additional results

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