Rogers v. Dent

• Decision Date: 14 March 1922
• Citation: 239 S.W. 1074,292 Mo. 576
• Parties: VERA ROGERS v. J. FRANK DENT and GEORGE A. DENT et al., Appellants
• Court: Missouri Supreme Court

239 S.W. 1074

292 Mo. 576

VERA ROGERS v. J. FRANK DENT and GEORGE A. DENT et al., Appellants

Supreme Court of Missouri, First Division

March 14, 1922

Appeal from Dent Circuit Court. -- Hon. L. B. Woodside, Judge.

Reversed.

G. C Dalton for appellant.

(1) A purchaser of property at an execution sale is not bound to examine into the regularity of the proceedings by which the judgment and execution thereunder were obtained, and as a rule is not affected by defects or irregularities in the proceedings not appearing of record. 17 Cyc. 1301; Thompson v. Tolmie, 2 Pet. 157; Reed v Munn, 148 F. 737; 23 C. J. 739; 37 Cyc. 1485. (2) In an action to collect back taxes, the circuit court does not exercise its jurisdiction in a special or summary manner, and its judgments therein are entitled to the same presumptions as attend its ordinary judgments. Brown v. Walker, 85 Mo. 262; Allen v. McCabe, 93 Mo. 138. (3) A judgment in a tax suit cannot be set aside on proof that the taxes for the year specified in the judgment had been paid before the suit was begun. Cooper v. Gunter, 215 Mo 558; Evarts v. Lumber Co., 193 Mo. 433. (4) In the absence of any showing of fraud or irregularity, mere inadequacy of price will not justify the court in setting aside a judicial sale. Hammond v. Scott, 12 Mo. 11; Nelson v. Brown, 23 Mo. 21; Meir v. Zelle, 31 Mo. 332; Parker v. Railroad Co., 44 Mo. 421; Wagner v. Phillips, 51 Mo. 117; Gordon v. O'Neil, 94 Mo. 355; Walker v. Mills, 210 Mo. 690; Stortz v. Voss, 205 S.W. 610; State ex rel. v. Elliott, 114 Mo.App. 562. (5) The court had jurisdiction of the subject-matter and the parties, therefore its judgment is unassailable. Shemwell v. Betts, 264 Mo. 268. (6) At the judicial sale foreclosing the state's lien for the delinquent taxes the forty acres involved in this action brought its full value. 22 C. J. 760; Railroad v. Clark, 121 Mo. 169; Martin v. Castle, 193 Mo. 195; Wagner v. Phillips, 51 Mo. 117; 2 Cooley on Taxation (3 Ed.) 959; Layton v. Trust Co., 205 F. 276. (7) Respondent does not allege in her bill that fraud was practiced in the very act of obtaining the judgment in the tax suit, or that she was prevented by interposition of appellants from showing, in said tax suit, the alleged payment of the taxes for the year for which the land was sold. Hamilton v. McLean, 139 Mo. 678; Christy v. Ry. Co., 214 F. 1020; Wolf v. Brooks, 177 S.W. 337; Railroad v. Mirrielees, 182 Mo. 141; Shemwell v. Betts, 264 Mo. 268.

Clyde C. Cope and J. J. Cope for respondent.

(1) A judicial sale of land for delinquent taxes can be defeated in a direct action for that purpose by showing that taxes were in fact paid for the year for which the land was sold. Secs. 12931, 12941, 12944, 12954, 12956, R. S. 1919; Hodge v. Hubbs, 94 Mo. 489; Harness v. Cravens, 126 Mo. 233; Kries v. Land and Lumber Co., 121 Mo.App. 184; Mangold v. Bacon, 237 Mo. 496. (2) The State has no lien under which it can sell for taxes if taxes have in fact been paid. Secs. 12928, 12929, R. S. 1919. (3) A judicial sale of land for delinquent taxes can be defeated in a direct action for that purpose by showing that taxes were in fact paid for the year for which the land was sold and that the amount bid and paid at the sale was an inadequate price for the land. Harness v. Cravens, 126 Mo. 233; Mangold v. Bacon, 237 Mo. 496. (4) Inadequacy of consideration alone will avoid judgment. Railroad Co. v. Brown, 43 Mo. 294. (5) Respondent's petition contains all the necessary allegations, and follows the proper course under the law for obtaining relief. Yeaman v. Lepp, 167 Mo. 61; Mangold v. Bacon, 237 Mo. 496.

RAGLAND, C. Small, C., concurs; Brown, C., absent.

OPINION

RAGLAND, C. --

This is a bill in equity to set aside a tax judgment and a sale and conveyance of real estate made in execution thereof. The bill was filed February 6, 1920.

The petition in substance alleges: Plaintiff is, and at all times has been, a non-resident of this State; on March 26, 1912, she purchased from one Jarrell, and he conveyed to her by warranty deed which she duly recorded, forty acres of land, the southeast fourth of the southwest quarter of Section 14, Township 34, Range 4, west, in Dent County, Missouri; she paid all state and county taxes assessed against the land for the years 1912 to 1918, inclusive; she paid the taxes for year 1916, with interest, penalties and costs, on March 6, 1917, and on said date received the collector's receipt therefor; the collector failed to credit such payment on the tax books kept for that purpose, and on February 15, 1918, caused a suit to be instituted, in the Circuit Court for Dent County, by the State at his relation against plaintiff and said Jarrell, for the collection of the taxes assessed against the land for the year 1916, as though they were delinquent and unpaid; plaintiff was constructively notified of the pendency of the suit by an order of publication returnable to the April term, 1918, of said court; during that term and on April 8, 1918, judgment was rendered in favor of the plaintiff in the tax suit for the sum of $ 3.85, the amount of the alleged delinquent tax, penalties and costs, and foreclosing the alleged lien of the State therefor; on June 7, 1918, special execution issued and the land was sold thereunder August 13, 1918, at public sale, to the defendants J. Frank Dent and George A. Dent for the sum of $ 48; and the sheriff who made the sale thereupon executed a deed purporting to convey the land to said purchasers. The plaintiff never knew anything about the tax suit, the judgment rendered therein or the sale of her land thereunder, until a few months before she instituted this suit.

The petition further alleges:

"That the records of said circuit court in said tax suit show on their face that all of the proceedings had in said tax suit were regular and legal and binding on all parties thereto; said records further show on their face that said judgment therein is valid and binding, and said record further show on their face that said sheriff's tax deed aforesaid is valid and binding and legal and fully and legally and completely conveys the fee simple title in and to said real estate in the said defendants, J. Frank Dent and Geo. A. Dent, but . . . that said judgment is in fact void for the reasons following:

"(a) Plaintiff by paying to the tax collector, A. R. Stephens, on the 6th day of March, 1917, all the taxes, costs and interest which said tax collector demanded of her as being due on said real estate up to that date, extinguished any lien the State of Missouri may have had on said real estate; and at the time the tax suit hereinbefore mentioned was instituted and prosecuted and at the time the said real estate was sold to said J. Frank Dent and Geo. A. Dent there was no lien existing against said real estate whereby such real estate could have been legally and equitably sold.

"(b) The action of said tax collector in receiving from plaintiff all the taxes, interest and costs due and unpaid and delinquent on and against said real estate and in failing, omitting and refusing to credit the tax books and back tax books kept by him with such payment, and thereafter causing to be instituted the tax suit aforesaid, knowing as he did that all such taxes had been paid and that the lien of the State of Missouri on and against said real estate therefor had been extinguished, all constituted a fraud on this plaintiff; and his actions in prosecuting said tax suit and causing said real estate to be sold as hereinbefore set out constituted a fraud on plaintiff; and his actions in obtaining the judgment recorded as aforesaid constituted a fraud on this plaintiff; by reason of all of which this plaintiff has been divested of her record title in and to said real estate and the record title to said real estate has become vested in said J. Frank Dent and Geo. A. Dent. . . .

"That said county collector and said attorney and said sheriff prosecuted said tax suit for plaintiff in that suit and sold said real estate aforesaid knowing that all the facts stated in this petition were true and they only prosecuted same and committed the wrongful and unlawful acts and were guilty of the wrongful and unlawful commissions hereinbefore mentioned for the wrongful and unlawful purpose of obtaining for themselves certain fees and commissions which they collected by reason of their conduct in said tax suit as aforesaid. . . .

"That the reasonable cash value of the said real estate at all times hereinbefore mentioned was and is now of not less than $ 1000; that the defendants, J. Frank Dent and Geo. A. Dent only bid and paid at the sale held $ 48; that such amount is a shockingly and grossly inadequate price for said real estate and is such as to shock the conscience, and this of itself was sufficient to warn said defendants that there had been fraud in the procuration of said judgment on the part of said plaintiff in said tax suit and said county collector and said attorney, and said sheriff. . . .

"Plaintiff heretofore has offered and hereby offers to refund to the defendants J. Frank Dent and Geo. A. Dent any and all taxes by them paid on said real estate, together with all interest thereon from the date of payment of such taxes to the date of judgment in this action, as soon as the amount thereof, if any, shall be ascertained by this court."

The answer admitted that defendants owned and claimed to have title in fee simple to the land described in the petition but all other allegations therein. It also averred that defendants purchased the land in good faith without any knowledge of the facts, if such they were, alleged in plaintiff's petition, believing that they would get a good title. It set up as a further affirmative...