Schwartz v. Dey

• Decision Date: 20 March 1984
• Docket Number: No. 65237,65237
• Citation: 665 S.W.2d 933
• Parties: Marcel SCHWARTZ and Ruth A. Schwartz, Plaintiffs-Appellants, v. Alberta L. DEY, Marion W. Dey, and Raymond W. Easley, Collector of Boone County, Missouri, Defendants-Respondents.
• Court: Missouri Supreme Court

Page 933

665 S.W.2d 933

Marcel SCHWARTZ and Ruth A. Schwartz, Plaintiffs-Appellants, v. Alberta L. DEY, Marion W. Dey, and Raymond W. Easley Collector of Boone County, Missouri, Defendants-Respondents.

No. 65237.

Supreme Court of Missouri En Banc.

March 20, 1984.

Hamp Ford, Larry M. Woods, Columbia, for plaintiffs-appellants.

Robert M. Morris, J. Turner Jones, Columbia, for defendants-respondents.

HIGGINS, Judge.

Marcel and Ruth Schwartz, residents of Maryland, brought suit to set aside a collector's deed to real estate located in Columbia, Missouri, formerly owned by them and sold at a tax sale to Alberta L. and Marion W. Dey. The trial court rejected appellants' constitutional challenge to the notice provisions of statutes empowering the Collector to collect property taxes and sell land for taxes owed, and granted a motion to dismiss in favor of the Deys. §§ 139.010, 140.170, RSMo 1978. Reversed and remanded.

Appellants contend that the notice provisions of sections 139.010 and 140.170, RSMo 1978, are constitutionally deficient; that sections 52.230 and 52.240, RSMo 1978, are inapplicable to non-resident taxpayers; and that the Deys paid inadequate consideration for the property. Respondents assert that the questioned statutes are constitutional; that the Collector's actions were constitutionally sufficient; that a property owner, resident or non-resident, has an obligation to satisfy his tax liability regardless of the receipt of a tax bill; and that inadequate consideration is not a ground for setting aside a collector's deed. Because of the Court's disposition of the constitutional questions, it is unnecessary to address the issue of consideration.

Appellants' constitutional argument is that the notices of taxes owed and notices of impending tax sale were constitutionally inadequate because they failed actually to apprise them of their liability. They assert that had the statutes in question provided adequate notice mechanisms, they would have been aware of their obligation to pay taxes and would not ultimately have lost their property.

In 1978, the Schwartzes, residents of Potomac, Maryland, purchased property in Boone County, Missouri. The address of the property was listed on the warranty deed as 320 West Boulevard North, Columbia, Missouri. This was the only address provided by purchasers to the Collector. Soon after their purchase, they leased the premises to others until the property was ultimately sold to the Deys at a tax offering in 1982 for $2550.

Prior to the tax sale the Collector of Boone County had attempted to collect then current taxes on the property from the Schwartzes. He did not post handbills nor did he publish notices of taxes due in a local paper. § 139.010, RSMo 1978. Instead, he mailed computer-generated notices of taxes due to "Schwartz Marcel and Ruth A., 320 West Boulevard North, Columbia, MO." The Collector mailed these notices for the tax years 1978, 1979, 1980 and 1981. Each notice was returned by the post office marked "not deliverable as addressed; unable to forward."

The Collector then began to mail notices of delinquent taxes due. § 52.285, RSMo 1979. These notices were also addressed to the Schwartzes at their last known address, the address of the property in question, in Columbia. The first notices stated that the property would be sold if the taxes were not paid before August 25, 1980. The following year the notices stated that the property would be sold August 24, 1981, as advertised. In 1982, the notices read "[l]and will be sold if taxes not paid prior to August 23, 1982." Each notice was returned by the post office. Pursuant to statutory directive, the Collector also published notices of tax sale in the Columbia Daily Tribune. § 140.170, RSMo 1978. All of these notices failed to produce a response. The Collector then consulted the local telephone directory in an attempt to locate the owners; he found no listing. He then consulted his personal tax files, but again found no listing. Finally, the Collector sold the property to the Deys.

In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Supreme Court stated that where a property interest is at stake, a party must be afforded that degree of "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. at 314, 70 S.Ct. at 657. The Court then held that notice by publication of a pending trust settlement was constitutionally inadequate where the settlor had the names and addresses of interested parties at hand or could readily ascertain them. Id. at 318, 70 S.Ct. at 659. Under the facts of the case, the Court held that the right to due process in the form of mailed notice outweighed the presumptive duty of a property owner to safeguard his interest in the property.

Cases decided subsequent to Mullane, supra, have added to that holding; and it is now established that the right to meaningful notice extends to actions affecting property interests in a variety of circumstances and that due process imposes corresponding duties upon those who would affect the rights of holders of such property interests: Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed....