Nelson v. Goebel

• Decision Date: 31 October 1852
• Parties: NELSON, Plaintiff in Error, v. GOEBEL, Defendant in Error.
• Court: Missouri Supreme Court

17 Mo. 161

NELSON, Plaintiff in Error,

v.GOEBEL, Defendant in Error.

Supreme Court of Missouri.

October Term, 1852.

1. A purchaser at a tax sale, under city ordinances, takes no title, unless due notice has been given of the sale, as prescribed in the ordinances.

2. No presumption is made in favor of tax titles under city ordinances. A party relying upon such a title must show a strict compliance with all the

prerequisites. Thus, where the assessor or other city officers are required to return and publish a description of the property, and the name of the owner, and their description is erroneous or incomplete, no title will pass to the purchaser.

Error to St. Louis Circuit Court.

Todd & Krum, for plaintiff in error. 1. Under its charters of 1839 and 1841, the city had power to levy the tax, and to sell for the non-payment of it. 2. All the proceedings were regular, and in substantial conformity with the provisions of the charter and ordinances. It is said that the assessor, in his return, did not mention the streets which bounded the property, nor the name of the owner, as he was required to do by section six of the ordinance, approved March 28, 1835. To this it may be answered, that the ordinance is merely directory, and the assessment and return are in substantial compliance with it. The object being to have a description of the property, certainty to a common intent is all that was contemplated or is required. By the description given, the property can easily be located. Again, it is said there was no notice by the comptroller of the sale of the forfeited lots, made July 15, 1846. This raises the question what is meant by the words “in manner and form,” &c., in the postponing ordinance. Notice having been duly given, and a day fixed for the sale before that ordinance was passed, the day of sale was merely postponed, just as a sheriff would postpone an execution sale. The “ manner and form” of the sale was by public outcry, &c. It should be borne in mind that the lot was then the property of the city by forfeiture, and the reason for notice did not exist.

F. M. Haight, for defendant in error. To pass land by a sale for taxes, all the prerequisites must be strictly complied with, and in this case they were not. 1. The assessment does not describe the property, as the ordinance required. No streets are mentioned. 2. The name of the owner is wrongly stated in the assessment. 3. No notice was given of the postponed sale, as the ordinance prescribed. 4. By the ordinance, the city could only purchase the property at auction in the absence of other purchasers. It does not appear in this case that there was any necessity for a purchase by the city, nor for what sum she purchased, or that she paid anything. 5. The defect, however, which must certainly be fatal, is the misdescription of the premises and defectiveness of the deeds.

RYLAND, Judge, delivered the opinion of the court.

This was a suit brought by Nelson to recover a lot of ground in the city of St. Louis. The plaintiff claims title under the city, by virtue of a forfeiture to the city for the non-payment of taxes, and then under a sale by the city to the plaintiff. On the trial below, the court instructed the jury, “that, taking and considering all the evidence in this case as true, still the plaintiff is not entitled to recover, and the jury should find the issue for the defendant.” Upon this instruction, the plaintiff submitted to a non-suit, made an unsuccessful motion to set it aside, and afterwards sued out a writ of error, and brings the case to this court.

It becomes necessary, then, for this court to take notice of the plaintiff's title, as made out in the court below. The plaintiff read the ordinance of the city regulating the revenue and taxes of the city, approved March 28, 1835. This ordinance provides for the appointment of an assessor; prescribes his duty; how he shall assess the property; what property shall be assessed; make return of the assessment list, &c. Section 6, c. 1, of this ordinance, is, in part, as follows:

“That the said assessor shall, within forty days after his qualifying as aforesaid, make a return of property, the nature or species whereof is mentioned in this ordinance, describing in his said assessment list, the street or streets on which any real estate by him assessed lies, together with the number of the block, and the number of the house (if any) in said block, and the names of the owners, and also the name or names of the person or persons owning or possessing any personal property made taxable by this ordinance, together with a description of such property, and the amount at which the same has been assessed.”

This ordinance also provides for the appointment of a collector, and prescribes his duties. Section 3 of chap. 2 of this ordinance, is as follows:

“That whenever the taxes aforesaid, or any part thereof, shall be unpaid, and sufficient goods, chattels and effects cannot be found to satisfy the same, the collector shall cause notice to be given to all delinquents or their agents, by handbills, (printed or written,) put up at six of the most public places in the city of St. Louis, containing a list and complete description of all property upon which a tax remains due and unpaid, the name of the person to whom charged, and the amount of the tax, or such part of the same as remains unpaid, and notifying such delinquents that, unless the taxes on said property, together with six per cent. on the same, for the use of the collector, be paid on or before a day therein mentioned, which shall not be less than thirty days from the day of setting up such notices, the property therein mentioned will then be sold, at the court-house door of the county, to satisfy the taxes due thereon, and ten per centum in addition thereto; and for all delinquencies in the payment of taxes on real estate, due by nonresidents, the notice aforesaid shall be published in one of the public newspapers printed in the city, for thirty days previous to the day of sale, and the same proceedings shall be had as above provided; and if the taxes on any lot or parcel of ground, with six per cent. aforesaid, be not paid before the day appointed for the sale thereof, the collector shall sell, at public auction, at the time and place in said notice mentioned, so much of each lot or parcel of ground as will be sufficient to pay and satisfy all taxes due and unpaid thereon, with the addition of ten per centum on the same, for the use of the collector; and if any lot or parcel of ground thus taxed and offered for sale, cannot be sold for the amount due thereon, with the additional per centum, the collector shall bid them off to the city; and where part only of a lot or parcel of ground shall be sold, the same shall adjoin one of the outlines or corners of the lot or parcel of ground thus taxed, so as not to include an improvement, if to be avoided; and a designation of the part so sold shall be made by the collector at the time of the sale; and the said collector shall deliver to the purchaser, (or to the register, if bought for the use of the city,) a certificate of such sale; and from and after the time of such sale, the lots and parcels of ground so sold, shall be assessed, and taxes paid by the purchaser.”

The plaintiff also read an ordinance declaring the per centum to be collected on the tax list of the city of St. Louis for the year 1842, No. 1032, approved July 30, 1842, as follows:

Sec. 1. That there shall be and hereby is levied a tax of one half of one per centum on the amount of the assessment list within the old limits, and a tax of one sixteenth of one per centum on the amount of the assessment list, on all that portion of the city added to the old city limits by act of the legislature, approved February 15, 1841, for the year 1842; and the city collector is hereby authorized and directed to collect of each and every individual assessed in said list, one half of one per centum, on the amount of property charged to him within the old city limits, and of each and every person assessed in said tax list one sixteenth of one per centum on the amount of property charged to him within the new addition to the city limits.

The plaintiff then introduced Augustin Kennerly as a witness, who testified, that he was appointed collector of the city of St. Louis by the mayor and board of aldermen in the year 1842, and acted as such collector during that year; that he knew John McCausland in his life time; that he was now deceased; that said McCausland acted as assessor for the city of St. Louis for the year 1842. Witness had seen McCausland write and knows his handwriting. A manuscript book was shown witness, with a front or title page written upon it, as follows:Proclamation.

To all whom it may concern:

Be it known, that the assessment list of the city for the year 1842, has been completed, returned and approved. Now, therefore, by virtue of authority in me vested, I do hereby require the honorable, the board of aldermen, to convene at their usual place of meeting, on Thursday, the 14th day of July next, at 10 o'clock A. M., then and there to hear and decide upon such appeals from said assessment as may be made.

And I do hereby give notice to all persons, who may think themselves aggrieved by said assessment, of the meeting of the board of aldermen, as a court of appeals, to which they may make appeals from the assessment. Given under my hand, &c., June 27th, 1842. By the mayor. J. A. Wherry, Register.

(L. S.)

GEORGE MAGUIRE.

Witness stated that “this book, so far as it purports to be a list and assessment of real and personal property subject to taxation in the city of St. Louis for the year 1842, is in the handwriting of the said McCausland; the book is the original assessment or tax book, made by said McCausland, for the year 1842. On one of the pages of said book appears the following:

A List of Property, real and personal, subject to taxation for the ...