Pettus v. City of St. Louis

• Decision Date: 08 October 1951
• Docket Number: No. 2,No. 42373,42373,2
• Citation: 362 Mo. 603,242 S.W.2d 723
• Parties: PETTUS et al. v. CITY OF ST. LOUIS et al
• Court: Missouri Supreme Court

Page 723

242 S.W.2d 723

362 Mo. 603

PETTUS et al. v. CITY OF ST. LOUIS et al.

No. 42373.

Supreme Court of Missouri, Division No. 2.

Oct. 8, 1951.

Sullivan, Finley & Lucas, Wilder Lucas, and Ralph T. Finley, all of St. Louis, for appellants.

James E. Crowe, City Counselor, Charles J. Dolan, Associate City Counselor, St. Louis, for respondent City of St. Louis.

BOHLING, Commissioner.

This suit in equity was instituted May 9, 1950, by Thruston Pettus, Bradford Blossom, and William E. Guy, Trustees upon Dissolution of St. Louis Merchants Land Improvement Company, against The City of St. Louis, a municipal corporation, Ross Aviation Corporation, a corporation, George Holtgrewe and Margaret Holtgrewe. The suit was to quiet title to certain real estate fully described in the petition and, among other things, to declare certain Collector's deeds under the Jones-Munger law, Laws 1933, pp. 425-449, R.S.Mo.1949, Sec. 140.090 et seq., dated September 11, 1942, and recorded October 21, 1942, null and void, and for cancellation of the same; for possession and damages et cetera. Special motions to dismiss on the ground plaintiffs' suit was to recover lands sold for taxes or to avoid the sale or conveyance of lands for taxes and was not commenced within three years of the time of recording the tax deeds, Sec. 11177, R.S.1939, Sec. 140.590, R.S.1949, were sustained, and plaintiffs' petition was dismissed, with prejudice, as to all defendants, at the costs of plaintiffs.

It has been heretofore held that the three year limitation of Sec. 11177 is applicable to suits to try and determine title involving the cancellation of tax deeds issued under the Jones-Munger law, Granger v. Barber, Mo.Sup., 236 S.W.2d 293, 297; and observations to like effect have been made in other cases involving like tax deeds. Bussen Realty Co. v. Benson, 349 Mo. 58, 66, 69, 159 S.W.2d 813, 817, 819; Harrison v. Coomber Realty & Inv. Co., 359 Mo. 862, 865, 224 S.W.2d 63, 64; United States v. Certain Land, in Wayne County, D.C., 70 F.Supp. 730, 732. See also Liese v. Sackbauer, Mo.Sup., 222 S.W.2d 84.

Plaintiffs contend the ten year, Sec. 1002, R.S.1939, Sec. 516.010, R.S.1949, and not the three year, Sec. 11177, supra, statute of limitations applies. They say that in Granger v. Barber, supra, the litigants assumed the three year statute applied, whereas they contend it stands repealed or its application is restricted to the revenue act of 1872, hereinafter discussed.

Section 11177 was Sec. '222' of 'An Act concerning the assessment and collection of the revenue' of 1872. Laws 1872, pp. 80[362 Mo. 607] -137, Secs. 1-249. Section 222 appeared as Sec. 221 in 2 Wagner Statutes 1872, p. 1207, and has been referred to as Sec. 222 and Sec. 221. We refer to the sections as numbered in Laws 1872.

We briefly outline several of the sections of the act of 1872. The county collectors were to enforce the lien for taxes unpaid on January 1st, annually. Sec. 173. The county courts had original jurisdiction of the lien enforcement proceedings at a term of court held on the third Monday in July, annually. Sec. 183. The county collector was to publish an advertisement of all real estate against which taxes remained unpaid on June 1st of each year, et cetera, and give notice that he would apply at said July term for judgment and an order to publicly sell the real estate on the first Monday of October, next, to enforce the State's lien, which advertisement was made sufficient and legal notice of the application for judgment and of the sale. Sec. 184. See also Sec. 204. The court was to determine any objections in a summary manner. Sec. 193. A copy from the judgment of the real estate subject to the judgment, et cetera, and of the judgment and order of sale, certified by the county clerk, constituted the process for sale. Sec. 196.

The county collector was to publicly sell the real estate. Sec. 199. Purchasers were entitled to a certificate of purchase. Sec. 207. The owner had a right of redemption at any time within two years. Sec. 209. See also Sec. 211. After the expiration of two years, the county collector, on production of the certificate of purchase, was to deliver a 'tax deed' for the real estate, if not redeemed. Secs. 217, 218.

Section 222, Sec. 11177, supra, here involved, so far as material, provided: 'Any suit or proceeding against the tax pruchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, (except in cases where the taxes have been paid or the land was not subject to taxation, or has been redeemed as provided by law), shall be commenced within three (3) years from the time of recording the tax deed, and not thereafter * * *.'

The cases accordingly held said three year special statute of limitations applied to collector's tax sales and deeds under the act of 1872. Francis v. Grote, 14 Mo.App. 324, 327(1), 330(2); Hill v. Atterbury, 88 Mo. 114, 120; Allen v. White, 98 Mo. 55, 59(II), 10 S.W. 881, 884(3); Bird v. Sellers, 122 Mo. 23, 32, 26 S.W. 668, 670.

A new law for the collection of delinquent taxes was enacted in 1877. Laws 1877, pp. 384-389. Said act provided for the collection of delinquent real estate taxes by suit against the owner, the issuance of a special fiere facias on the judgment, and its execution as in other cases of special execution. See Secs. 6, 7. It provided for the conveyance of a title in fee by the sheriff to the purchaser at the execution sale and there was no redemption period as under the act of 1872. Sec. 8; Sec. 9958, R.S.1929; Fleckenstein v. Baxter, 114 Mo. 493, 496, 21 S.W. 852; Bussen Realty Co. v. Benson, 349 Mo. 58, 159 S.W.2d 813, 820. It expressly repealed Sec. 184 of the 1872 act and all inconsistent acts or parts of acts.

The act of 1877 provided no limitation period. The terms of Sec. 222, supra, did not conform to the act of 1877, see Keaton v. Hamilton, infra, and said three year statute was held not to apply to sales of lands for delinquent taxes and deeds under judgments of the circuit court under said act of 1877. Blodgett v. Schaffer, 94 Mo. 652, 672(V), 7 S.W. 436, 442(5); Bartlett v. Kauder, 97 Mo. 356, 361(IV), 11 S.W. 67, 68(4); Bird v. Sellers, 113 Mo. 580, 593, 21 S.W. 91, 94; Williams v. Sands, 251 Mo. 147, 165(V), 158 S.W. 47, 51(5); Gulley v. Waggoner, 255 Mo. 613, 620(I), 624, 164 S.W. 557, 558(1), 560; Workman v. Moore, Mo.Sup., 177 S.W. 862, 864; Wengler v. McComb, Mo.Sup., 188 S.W. 76, 78; Keaton v. Hamilton, 264 Mo. 564, 577(IV), 175 S.W. 967, 970; Horton v. Gentry, 357 Mo. 694, 700, 210 S.W.2d 72, 75; and see Granger v. Barber, Mo.Sup., 236 S.W.2d 293, 297. The concurring opinion in Gulley v. Waggoner, 1914, supra, stated that for a generation tax-title cases had proceeded on the theory a ten-year limitation governed.

Blodgett v. Schaffer (Banc, April Term, 1888), supra, considered said Sec. 222 stood repealed. This also was the ruling on the first appeal of Bird v. Sellers (Div. II, 1893), supra, following Blodgett v. Schaffer. However, in the interim Allen v. White, 98 Mo. 55, 62(III), 10 S.W. 881, 884(3), was decided by court en banc at the October Term, 1888, and involved a collector's tax deed under the 1872 act recorded on December 7, 1877. It was there held that said act of 1877 had neither amended nor repealed said Sec. 222 and on the ground Sec. 222 was in force and effect, a suit instituted August 25, 1884, was held barred, not having been commenced within three years of the recording of said deed. On the second appeal of Bird v. Sellers, (Div. I, 1894), 122 Mo. 23, 32, 26 S.W. 668, 670, the observation in Blodgett v. Schaffer, supra, and the holding on the first appeal of Bird v. Sellers, supra, were disclosed to be erroneous.

In Meriwether v. Overly (Div. II, 1910), 228 Mo. 218, 229(I), 129 S.W. 1, 4(1), an attack made on Sec. 60, Art. 5, Kansas City charter, limiting the time for commencing a suit to defeat or avoid a city tax deed to three years after the recording of the tax deed, on the ground said Sec. 60 was 'inconsistent with the general laws of this state' was overruled for the reason said Sec. 60 was in harmony with Sec. 222, supra, which had not been repealed but remained in force and effect.

Said Sec. 222 was omitted from the Revised Statutes of 1879, 1889, and 1899. However, it has been incorporated in the Revised Statutes since 1909, see Granger v. Barber, Mo.Sup., 236 S.W.2d 293, 297 and cases cited, and was Sec. 9964, R.S.1929.

Plaintiffs contend Sec. 11177 (Sec. 222), supra, was repealed by the quite title act of 1897, Laws 1897 pp. 74, 75, Sec. 1684 et seq., R.S. 1939, Sec. 527.150 et seq., R.S.1949. They say: 'In 1872 the statute enabling the bringing of suits to quiet title against persons out of possession had not been passed'; and in order to test the title of a recorded tax deed holder under the 1872 act, who was out of possession, special provision was made therefor by Sec. 11178, R.S.1939, R.S.Mo.1949, Sec. 140.580, Laws 1872, p. 130, Sec. 223, and Sec. 11177 'simply provided a limitation period for such suits.'

Said Sec. 1684 provides: 'Any person claiming any title * * * in real property * * *, whether in possession or not, may institute an action against any person * * * claiming to have any title * * * in such property, whether in possession or not, to ascertain and determine' title. The 'code of civil procedure' with respect to actions affecting real estate was to govern. Laws 1897, p. 74, Sec. 2, Sec. 1685, R.S.1939, Sec. 527.160, R.S.1949. Acts and parts of acts inconsistent with said quiet title act were repealed. Laws 1897, p. 74, Sec. 4.

Section 11178, supra, provided that any person putting a tax deed on record set up such a title to the land as to enable the owner 'to maintain an action for the recovery of the possession thereof against the grantee in deed, * * * whether such grantee * * * is in actual possession of the land or not.' The...