Raley v. Guinn

• Decision Date: 31 October 1882
• Citation: 76 Mo. 263
• Parties: RALEY, Appellant, v. GUINN.
• Court: Missouri Supreme Court

76 Mo. 263

RALEY, Appellant,

v.GUINN.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Schuyler Circuit Court.--HON. ANDREW ELLISON, Judge.

REVERSED.

James Raley for appellant.

1. There was a judgment rendered by the county court for the amount of taxes found due, and this judgment recites that due notice had been given, and by the positive declarations of the statute, (2 Wag. Stat., p. 1199, § 193,) this judgment “has the same force and effect as judgments of the circuit courts and other inferior courts of this State.” Such judgments are conclusive and can't be attacked collaterally. Cooley on Taxation, 323, 362; Freeman on Judg., §§ 135, 126; 92 Ill. 619; Wilkins v. Huse, 9 Ohio 160; Hilliard on Taxation, 461; Burrows on Taxation, 286; Eitel v. Foote, 39 Cal. 439; Jones v. Gillis, 45 Cal. 541; State v. Steamship Co., 13 La. Ann. 497; Daily v. Newman, 14 La. Ann. 580; Dunham v. Wilfong, 69 Mo. 358; Mayo v. Foley, 40 Cal. 281; Reeve v. Kennedy, 43 Cal. 643; 44 Cal. 623; Anderson v. Rider, 46 Cal. 134; Vassault v. Austin, 36 Cal. 691; Mayo v. Ah Loy, 32 Cal. 477; Seegee v. Thomas, 3 Blatch. 11; Lincoln v. Tower, 2 McLean 473; Johnson v. Beazley, 65 Mo. 250; Murray v. Purdy, 66 Mo. 606; Sims v. Gray, 66 Mo. 616; Long v. Joplin Mining Co., 68 Mo. 433; Salisbury v. Sands, 2 Dill. C. C. 271; Isaacsv. Price, 2 Dill. C. C. 351; Freeman on Judg., § 334; Cooley Const. Lim., (4 Ed.) 401, note 4; Warren v. Lusk, 16 Mo. 102; Baker v. Stonebraker, 34 Mo. 176; Latrielle v. Dorleque, 35 Mo. 233; Lenox v. Clarke, 52 Mo. 116; Freeman v. Thompson, 53 Mo. 183; Rumfelt v. O'Brien, 57 Mo. 570; Fahs v. Darling, 82 Ill. 142, 145; 27 Ala. 391, 663; Kane v. McCown, 55 Mo. 181, 200; Brawley v. Ranney, 67 Mo. 283; Boswell v. Sharp, 15 Ohio 466, 467; Bonsall v. Isett, 14 Iowa 309; Allen v. Armstrong, 16 Iowa 508; Pursley v. Hayes, 22 Iowa 11; 24 Iowa 217; Shea v. Quintin, 30 Iowa 59; Lyon v. Vanatta, 35 Iowa 525; Darrah v. Watson, 36 Iowa 116; Grignon v. Astor, 2 How. 319; Armstrong v. Grant, 7 Kas. 285; Sheldon v. Wright, 5 N. Y. 497; Tebbetts v. Tilton, 31 N. H. 273; Sharp v. Lumley, 34 Cal. 611; Callen v. Ellison, 13 Ohio St. 446; Voorhies v. U. S. Bank, 10 Peters 449; Cooper v. Reynolds, 10 Wall. 309; 67 Ill. 563; 83 Ill. 529; Scott v. Pleasants, 21 Ark. 364; Cadmus v. Jackson,52 Pa. St. 295; Gaylord v. Scarff, 6 Iowa 179, 185; Wallace v. Brown, 22 Ark. 118; Greenabaum v. Elliott, 60 Mo. 30; Wellshear v. Kelley, 69 Mo. 344.

2. The judgment is for dollars and cents, and it cannot be invalidated by any omission of these marks in any of the prior lists, such as the assessment or advertisement. Chickering v. Faile, 38 Ill. 344; 46 Ill. 203; Burrows on Taxation, 231; Jones v. Gillis, 45 Cal. 541; State v. Eureka Co., 8 Nev. 22; Cahoon v. Coe, 52 N. H. 518, 525.

3. The statute provides that no irregularity in any of the proceedings shall invalidate the sale and title. Wag. Stat., p. 1212, § 241. An excessive levy is only an irregularity. Smith v. Leavenworth, 9 Kas. 301; 79 Ill. 597, 601, 605; 83 Ill. 473. So is an assessment of several tracts together. 4 Wat & Serg. 271; Russell v. Werntz,24 Pa. St. 346; Laird v. Hiester,24 Pa. St. 452; Mayo v. Foley, 40 Cal. 281; Eitel v. Foote, 39 Cal. 439; 46 Cal. 137; Moulton v. Doran, 10 Minn. 67; Burrows on Taxation, 302. Where several lots are used and occupied as one tract it is proper to assess and sell them in a body. 39 Iowa 294; 42 Iowa 85; Cooley on Taxation, 342, note 1. Where the court ordered publication in the Georgia Journal, but the law required notice to be posted in public places in the county, it is only an irregularity. Peterman v. Watkins, 19 Ga. 153. So is a judgment by confession without the affidavit required by law. Dean v. Thatcher, 32 N. J. L, 470; and omission of owner's name, 11 C. L. J., No. 26, p. 19, Addendum; or omission of the judge or clerk to sign the judgment. Freeman on Judg., § 40, note 5; Osburn v. State, 7 Ohio 214. So is improper subdivision into lots, contrary to law. 79 Ill. 597, 601, 605; 83 Ill. 493. So is selling a number of separate lots in a body when the statute directs them sold separately. Cunningham v. Cassidy, 17 N. Y. 276; Rector v. Hartt, 8 Mo. 448; Kelly v. Hurt, 61 Mo. 468. So if the defendant is not served the number of days required by law. Sims v. Gray, 66 Mo. 616; 66 Mo. 606; 65 Mo. 250; 68 Mo. 433; Freeman on Judg., § 126; Darrah v. Watson, 36 Iowa 116; Helphenstine v. Bank, 7 C. L. J. 27; Allen v. Armstrong, 16 Iowa 508. So is the rendition of judgment on the very day a summons is served. Armstrong v. Grant, 7 Kas. 285. So is a biennial assessment where the statute requires an annual assessment. State ex rel. v. Powers, 68 Mo. 327. Every substantial right is secured to a defendant by allowing him to show only three things to defeat a sale of his land for taxes; all others are only irregularities. DeTreville v. Smalls, 98 U. S. 517; Callanan v. Hurley, 93 U. S. 387, 390. A notice of sale is required by law, but if no notice is given it is an irregularity only. “Returning periods of sale are fixed by law, and owners are, therefore, apprised by the law itself that their lands will be sold at the regular period if the taxes are not paid.” Thompson v. Brackenridge, 14 S. & R. 346; Allen v. Armstrong, 16 Iowa 508; Philadelphia v. Miller,49 Pa. St. 455; Smith v. Cleveland, 17 Wis. 556, 589; DeTreville v. Smalls, 98 U. S. 517.

Failure of the printer to attach his affidavit to a copy of the paper filed in the county court, is no concern of the tax-payer. It is for the information of the court and the security of the public. Cooley or Taxation, 219, 220. Because the affidavit was not attached at the time of the trial it does not follow that it never was attached. Salisbury v. Sands, 2 Dill. C. C. 277; Freeman v. Thompson, 53 Mo. 190; Rumfelt v. O'Brien, 57 Mo. 572; Jones v. Manly, 58 Mo. 564; Long v. Joplin Mining Co., 68 Mo. 433. It would be difficult to find a directory provision if this is not one, and so also it would be difficult to find a more trifling irregularity. Dean v. Thatcher, 32 N. J. L. 470.

Higbee & Shelton for respondent.

The court properly admitted the collector's notice in evidence. It was part of the record. Brown v. Langlois, 70 Mo. 227. The judgment is ex parte, rendered by a court of limited jurisdiction, and may be impeached collaterally. Spurlock v. Allen, 49 Mo. 180; Abbott v. Doling, 49 Mo. 304; Lagroue v. Rains, 48 Mo. 536; Abbott v. Lindenbower, 42 Mo. 162; Wellshear v. Kelly, 69 Mo. 353. The deed is not conclusive. Section 219, page 1206, Wagner's Statutes, does not differ from section 112, page 127, General Statutes 1865. It must be presumed that in re-enacting the latter, the above cases were as much considered part of said section as if embodied in it. Lucas Bank v. King, 73 Mo. 591. If the deed were conclusive, the tax proceeding would be confiscation. Cooley Const. Lims., *368, 369, note 2. Section 219 should be read in connection with section 241. The curative powers of the deed are limited to “mere irregularities.” The levy was bad because the county court did not ascertain and enter on the record the sum necessary to be raised for county purposes as required by the statute. Wag. Stat., p. 1193, § 166; Cooley on Tax., 295; Clark v. Crane, 5 Mich. 154; Hoyt v. East Saginaw, 19 Mich. 39; s. c., 2 Am. Rep. 76; Scofield v. Lansing, 17 Mich. 437. The execution of the deed, a mere ministerial act, cannot deprive the owner of his title. Groesbeckv. Seeley, 13 Mich. 343; Mason v. Roe, 5 Blackf. 98; Doe v. McQuilkin, 8 Blackf. 335; Cooley on Tax., 215, n. 2; 216, 217, note 2; Pound v. Supervisors, 43 Wis. 63; s. c., 6 Cent. L. J. 18. The assessment is jurisdictional; the omission of the statutory affidavit is fatal. Marsh v. Supervisors, 42 Wis. 502; 5 Cent. L. J. 509. The omission of any word or sign to indicate the meaning of the figures, 5,68, is fatal. Woods v. Freeman, 1 Wall. 398; Baily v. Doolittle, 24 Ill. 577; Braly v. Seaman, 30 Cal. 610; People v. Savings Union, 31 Cal. 132; Cook v. Norton, 43 Ill. 391; Randolph v. Metcalf, 6 Coldw. 400; Tidd v. Rines, 26 Minn. 201; s. c. 9 Cent. L. J. 338.

HENRY, J.

This is an action of ejectment to recover possession of the southwest quarter of the northwest quarter of section 31, township 67, range 15, in Schuyler county. Plaintiff claims under a tax deed executed by the collector of said county, on the 17th day of February, 1877, on a sale which occurred the 6th day of October, 1874. The petition is in the ordinary form, and the answer a general denial. From a judgment in favor of the defendant, plaintiff has appealed.

The principal grounds relied upon to defeat the recovery are: 1st, That the printer did not attach his affidavit to a copy of the newspaper filed in the county court containing the list of lands delinquent for taxes. 2nd, That the amount of the taxes due on the land, was not specified in said list, but instead thereof, opposite the description of the land, in a separate column, were the figures, “5,68,” without any dollar character, or anything else to indicate the meaning of the figures. 3rd, That the county court, before levying the tax, did not ascertain and enter of record, the sum necessary to be raised for county purposes. 4th. That the judgment of the county court, enforcing the lien for the taxes, was signed by “W. B. Newman, President,” instead of “W. B. Newman, Presiding Justice of the County Court of Schuele County.”

Numerous other questions are discussed by counsel in their brief, which it is not deemed necessary to notice particularly, inasmuch as the application of the principles which will control on the points above named, will determine that also.

By section 219, Wagner's Statutes, 1206, the collector's deed is made prima facie evidence, that each and every act and thing required to be done by the provisions of the act has been complied with; and the party offering such deed in evidence shall not be required to produce the...