Phelps v. Brumback

• Decision Date: 25 April 1904
• Citation: 80 S.W. 678,107 Mo.App. 16
• Parties: FRANK N. PHELPS, Respondent, v. JEFFERSON BRUMBACK, Appellant
• Court: Kansas Court of Appeals

80 S.W. 678

107 Mo.App. 16

FRANK N. PHELPS, Respondent, v. JEFFERSON BRUMBACK, Appellant

Court of Appeals of Missouri, Kansas City

April 25, 1904

Rehearing Denied 107 Mo.App. 16 at 25.

Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.

Judgment reversed and remanded.

Jefferson Brumback for appellant.

(1) Assuming the validity of the tax of 1894 there can be no lien on the two inside portions sold out of the tract. Carter v. Phillips, 49 Mo.App. 319; Charter of Kansas City art. 5, secs. 41, 58 and 59; Taft v. McCullock, 135 Mo. 591; Gregg v. Jesberg, 113 Mo. 41; Heidelberg v. St. Francois Co. Ct., 100 Mo. 74; Charter, art. 5, sec. 37; St. Louis v. Howard, 119 Mo. 45; State v. Slover, 126 Mo. 659; State v Ebbs, 89 Mo.App. 98; Charter, art. 5, secs. 66, 47, 57; Ross v. Railroad, 111 Mo. 26; Downing v. Still, 43 Mo. 317; Hirsch v. Weisberger, 44 Mo.App. 511; Mason v. Crowder, 85 Mo. 531; Bingham v. Birmingham, 103 Mo. 348; Charter, art. 5, secs. 47, 61, 60 and 37; Belz v. Bird, 31 Kan. 144; Corbin v. Bronson, 28 Kan. 535; Mitchell v. Lines, 36 Kan. 378; Douglass v. Boyle, 42 Kan. 395; Bruington v. Barber, 63 Kan. 28; Humphrey v. Yost, 62 P. 550; Burdick v. Bingham, 38 Minn. 482; Sullivan v. Donnell, 90 Mo. 278; Session Acts 1875, p. 240, sec. 72; Oster v. Rabeneau, 46 Mo. 595; Holland v. McCarty, 24 Mo.App. 87; Miller v. Hoffman, 26 Mo.App. 204; Rall Bros. v. McCrary, 45 Mo.App. 371; Lumber Co. v. Brewing Co., 78 Mo.App. 233; Bowerman v. Lackawana Mining Co. (not reported). (2) Assuming the validity of the tax and sale of 1894 there could be but one lien and one cause of action to enforce it. The splitting of the cause of action to obtain a separate lien against each of the three portions of the parcel taxed prevents respondent from having any lien. Charter, art. 5, secs. 14, 20, 38, 40, 41, 47, 43; Newham v. Kenton, 79 Mo. 382; Ross v. Ross, 81 Mo. 88; Reed v. Batt, 100 Mo. 67; Bliss on Code Pleadings (3 Ed.), sec. 118, p. 118; Morrison v. Florian, 76 Mo.App. 649; Willard v. Sperry, 16 J. R. 121; Cussleberry v. Forques, 27 Ill. 172; Bank v. Tracy, 141 Mo. 258; Charter, art. 5, secs. 47, 57 and 61; State v. Railway, 114 Mo. 11; Charter, art. 5, secs. 14, 15, 16, 17, 18, 19, 20; Black on Tax Titles (2 Ed.), sec. 261, p. 324, ch. 15. (3) The single valuation of, and single tax against, the three lots were both illegal and therefore there can be no lien. Charter, art. 5, secs. 14 and 20; State ex rel. v. Railway, 114 Mo. 9; Cooley on Taxation (2 Ed.), p. 401, chap. 12; Charter, art. 5, sec. 66; Hamilton v. Fond du Lac, 25 Wis. 495; Burke v. Brown, 148 Mo. 309. (4) No lien can be allowed because each of the three minute portions is too small to be covered in ejectment, if any one should get a deed purporting to convey them under foreclosure of a lien. Neither portion can be surveyed nor occupied. Neither portion is property. Sedgwick and Wait on Trial of Title to Land (2 Ed.), p. 52, sec. 97, chap. 3; R. S. 1899, secs. 10188, 10186, 10184; Charter, art. 5, sec. 41; Smith v. Kenney, 89 Ill.App. 298; Rigney v. City of Chicago, 102 Ill. 64; Glos v. Furman, 164 Ill. 590; 1 Cooley's Blackstone (3 Ed.), p. 321; 2nd book of Blackstone, chap. 1, pp. 1 and 2; 1st book of Blackstone, ch. 1, pp. 89, 138, 139. (5) There can be no lien because the sale for delinquent taxes was not continued from day to day, or otherwise, from the first Monday of November, 1894, to the sixteenth day of November. Charter, art. 5, secs. 37, 40, 43 and 47; Gregg v. Jesberg, 113 Mo. 41.

Charles B. Adams and Metcalf & Brady for respondent.

(1) The tax was legally assessed against lots 85, 86 and 87 as a separate and distinct parcel of land. McQueston v. Swope, 12 Kan. 32; Hall v. Dodge, 18 Kan. 280; Dodge v. Emmons, 34 Kan. 732; Wright v. Cradlebaugh, 3 Nev. 310; People v. Culverwell, 44 Cal. 620. (2) Even if appellants' construction of the charter is correct, that each lot should have been separately assessed, the assessment as made, although irregular, would still stand as a valid tax against the property. Section 66, article 5, of the charter is broad enough to cure any such erroneous or irregular assessment and preserve the city's lien. (3) Aside from the question of the validity of the tax as originally assessed, the only question presented for determination by this court, is the right of respondent to a lien on the property covered by the tax deed for taxes, penalties and costs as provided for in section 59, article 5, of the charter. Cooley on Taxation (2 Ed.), p. 476; White v. Shell, 84 Mo. 573; Pitkin v. Roebel, 104 Mo. 509; Pitkin v. Shacklett, 106 Mo. 571; Bingham v. Birmingham, 103 Mo. 345; French v. Edwards, 13 Wall. 506; City Charter, sec. 41, art. 5; Lackland v. Nevins, 3 Mo.App. 335; Watson v. Priest, 9 Mo.App. 263.

OPINION

BROADDUS, J.

The petition in this case contains six counts. The first three were counts in ejectment; and the fourth, fifth and sixth were for the recovery of money paid at a certain tax sale, with penalties, interest, cost of recording tax certificate, and cost of deed, as provided by section 59, article 5, of the charter of Kansas City. The property on which the assessment was made is known as lots 85, 86 and 87 of T. A. Smart's Third Continuation, an addition to Kansas City, Missouri. The three lots were assessed as one parcel for taxes for the year 1894 at which time one David Orrison was the owner. The said Orrison having failed to pay the tax assessed against the property, the city treasurer advertised the lots with other lands for sale for delinquent tax to take place on the first Monday of November, 1894, which was the fifth day of said month; and on which day said treasurer began to sell lands for such delinquent taxes, which sales were continued from day to day until on the sixteenth day of said month at which time he offered the three lots for sale as one parcel and one, C. Winfrey, offered to pay the amount of the tax, interest and cost, then amounting to $ 64.86 for the south one-three hundredths inch of each of the three lots designated by him at the time he offered the bid. Winfrey paid the amount named and the three portions thus designated were sold to him. The city auditor made a record of the sale as required, describing the three lots as one tract and showing the sale so made to Winfrey, and made and delivered to him a certificate of purchase of the date of sale, which was afterwards properly acknowledged. Some lands were sold by the treasurer on November 5, but none on the next day on which was held an election for State and county officers. Property was offered and sold, however, on all the subsequent days up to and including the seventeenth of said month, except Sundays, but there was no record made of adjournment from one day to another. On September 5, 1895, said Winfrey sold and transferred his certificate of purchase to plaintiff Phelps; and the city treasurer made him a deed for three-hundredths inch off the south side of each of said lots. The valuation placed upon the three lots as one parcel was $ 5,280. After the institution of this suit the assessor, at the instance of the plaintiff, apportioned this amount among the three lots as follows: $ 2,000 to lot 85; $ 1,640 to lot 86; and $ 1,640 to lot 87. And on this basis he apportioned the said bids of Winfrey as follows: $ 24.57 for south one-three hundredth inch of lot 85; $ 20.15 for south one-three hundredth inch of lot 86, and $ 20.14 for south one-three hundredth inch of lot 87. These apportionments were not made of record in any of the city's books but they were adopted by the trial court. Since said assessment of said property and sale for said taxes, the defendants, who then held liens on the same by deed of trust, became the owners in fee of the same and were such owners at the time of the judgment herein. It appears from this statement that Winfrey did not apportion his bid between the three lots but his one bid in the gross applied to all the said lots.

It is provided by section 59, article 5, of the Kansas City charter: "If any person claiming title under a tax deed . . . shall be defeated in any suit by or against him for the recovery of the real property conveyed or purporting to be conveyed by such tax deed, the successful claimant shall be adjudged to pay such person claiming under such tax deed the full amount of all money paid by the purchaser at the tax sale for such real property, and ten per centum of such amount immediately added with twenty-four per cent interest per annum on the whole amount thus made from the day of sale . . . which judgment shall be a lien upon the real property in controversy, and shall bear interest at the rate of twenty-four per cent per annum and may be enforced by execution as in other cases of judgments and decrees of such court."

It was admitted on the trial that the plaintiff was not entitled to recover on his ejectment counts but the court found for him on the three remaining counts and rendered judgment on each enforcing his lien under the charter on the south three-hundredths inch of each lot. Defendants appealed.

Defendants contend, assuming the validity of the taxbill for the year 1894, there could be no lien on the two inside portions sold. Section 41 of said chapter aforesaid provides among other things: "The person who will pay the taxes . . . for the least number of front feet or inches of any lot or parcel of real property to be taken from either side thereof, the side to be designated by the bidder at the time he offers his bid, shall be deemed the purchaser for the smallest portion of such lot or parcel of real property."

The theory of defendants is that, as the property was assessed as one parcel it should have been sold as such, or so much thereof as was necessary to...