Sharp v. Richardson

• Decision Date: 03 July 1944
• Docket Number: 38956
• Citation: 182 S.W.2d 151,353 Mo. 138
• Parties: Edward F. Sharp v. Walter Richardson, Appellant
• Court: Missouri Supreme Court

182 S.W.2d 151

353 Mo. 138

Edward F. Sharp v. Walter Richardson, Appellant

No. 38956

Supreme Court of Missouri

July 3, 1944

Rehearing Denied September 5, 1944.

Appeal from New Madrid Circuit Court; Hon. Stephen Barton Special Judge.

Affirmed.

Finch & Finch and Ward & Reeves for appellant.

(1) Plaintiff's petition wholly failed to state a cause of action because it failed to contain an offer to refund to defendant the taxes paid by him or his predecessors in title. This was a prerequisite to the cancellation of the tax deed and the other deeds conveying the real estate to defendant. Sec. 11179, R.S. 1939; Hawkins v. Heagerty, 348 Mo 914, 156 S.W.2d 642; Queen City Inv. Co. v. Kreider, 31 S.W.2d 1002. (2) The statutory requirements with reference to the platting of additions to cities, towns and villages were never complied with. Secs. 12804, 12805, 12806, 12809, R.S. 1939. (3) Said Section 12809 makes it unlawful for any person to make a conveyance of real estate by lot and block before a plat shall be made up, acknowledged, approved by a city council, and filed in the recorder's office, and a penalty is provided for one who violates this section. Therefore, the attempt to assess for taxation or to sell the real estate in controversy by lots and blocks was wholly void. Downing v. Ringer, 7 Mo. 585; State ex rel. v. Cox, 306 Mo. 537, 268 S.W. 87; State ex rel. v. Dallas County Court, 72 Mo. 329; St. Louis Fair Assn. v. Carmody, 151 Mo. 566; Tri-State Amusement Co. v. Amusement Co., 192 Mo. 404; Miller v. Bowen Coal & Mining Co., 40 S.W.2d 485. (4) A valid assessment is essential to a valid tax and the law requiring description of land subject to assessment to be accurate and in conformity with least legal subdivision, or by lots and blocks in cities and towns based upon plats, acknowledged and recorded as required by statute, must be strictly construed, and a tax based upon lots and blocks without an acknowledged and recorded plat showing a proper description is a nullity and a sale thereunder carries no title. Consequently the plaintiff obtained no title at his tax sales. State ex rel. Collector v. Hamilton, 293 S.W. 378. (5) Where both the acreage and the legal description is given, and the acreage is incorrect, the legal description still stands and is good. This rule of law applies to tax assessments and tax suits, and consequently defendant's description was good. Pruitt v. St. John's Levee Dist., 106 S.W.2d 467; Ellsberry Drain. Dist. v. Seerley, 329 Mo. 1237, 49 S.W.2d 162; Nat'l Cemetery Assn. v. Benson, 344 Mo. 784, 129 S.W.2d 842. (6) Regardless of whether or not the description in the defendant's title is good, the plaintiff is in no position to attack it, since the only title he has is by lots and blocks and there is no such description appearing in any record whatever and no surveyor could possibly locate the real estate as described in plaintiff's title. The plaintiff must recover on strength of his own title and not the weakness of the defendant's title. Langford v. Welton, 48 S.W.2d 860; Akins v. Adams, 256 Mo. 2.

Henry C. Riley and Edward F. Sharp, pro se, for respondent.

(1) Under the evidence in this case there was an attempted double taxation of the property involved. 61 C.J., pp. 137, 140. (2) And being a double taxation it was the duty of the county to have released the owner thereof from the second assessment, the other having been paid. Sec. 10998, R.S. 1939. (3) An accurate description of the land is necessary to a valid assessment of a tax thereon. The attempted assessment under defendant's claim and the sale and deed issued thereon are all absolutely void because of insufficient description. State ex rel. Collector v. Wabash Railroad, 114 Mo. 1; State ex rel. Ward v. Linney, 192 Mo. 49; State ex rel. Smith v. Williams, 216 S.W. 535; State ex rel. Marlowe v. Nolan, 146 S.W. 599; Martin v. Childress, 134 S.W.2d 137; State ex rel. v. Burrough, 174 Mo. 707; State ex rel. Ross v. Lamb, 25 S.W.2d 83; Marvin v. Elliott, 99 Mo. 616. (4) Parole evidence is not admissible where deed shows on its face the ambiguity of description. Mudd v. Dillion, 166 Mo. 120; Federal Land Bank v. McColgan, 59 S.W. 1052; State ex rel. v. Burroughs, 174 Mo. 707. (5) The filing of the plat in the recorder's office accompanied by a sale of lots in accordance therewith constitutes a complete common law dedication of the property involved. Byam v. Kansas City Public Serv. Co., 41 S.W.2d 949; Railroad v. Baker, 183 Mo. 322; Otterville v. Bente, 240 Mo. 296; Heitz v. St. Louis, 110 Mo. 618; Caruthersville v. Huffman, 262 Mo. 367; Hatton v. St. Louis, 175 S.W. 888. (6) Any defect in the making and filing of the original plat, which had been on filed for more than ten years is secured by express provisions of the statutes. In this case we have the additional fact that more than 25 years (since 1914) the plat had been acted upon and accepted by both the city of Marston and the county court by using the designated lots and blocks for the purpose of taxation and assessing and collecting taxes based on such descriptions for more than 25 years. R.S. 1939, sec. 12806. (7) The Court of Appeals held that an approval of the plat by the City Council is a mere ministerial duty which can be compelled by mandamus. Mortgage Co. v. Nolte, 211 Mo.App. 601. (8) Where the city accepts a plat by improving and using a street as platted and further by assessing taxes on the property involved, such acts constitute an acceptance by the city of the whole plat and not merely such portion as it chose to improve. Heitz v. St. Louis, 110 Mo. 618; Caruthersville v. Huffman, 262 Mo. 367. (9) In this case the county of New Madrid having accepted the designated land involved as lots and blocks and having for more than 85 years assessed and collected taxes thereon by such descriptions is now estopped to deny acceptance by it of the plat designating the property involved as lots and blocks. City of Mountain View v. Telephone Co., 243 S.W. 153; State ex rel. Sikeston v. Mo. Utilities, 137 S.W.2d 456; 31 C.J., sec. 405, sec. 446, note 46. (10) Proof of assessment by lots is admissible in evidence. Marion v. Elliott, 99 Mo. 616. (11) The Supreme Court has held that where a plat though not acknowledged and therefore not entitled under the law to be recorded, actually recorded that such platting constitutes a good common law dedication. Hatton v. St. Louis, 175 S.W. 888; Heitz v. St. Louis, 110 Mo. 618. (12) This suit was filed under the provisions of Section 1684, R.S. 1939. A rather belated attempt is now made by appellant to claim that the suit is brought under Section 11179, R.S. 1939. This distinctly is not a suit to redeem from a tax sale and is a suit to quiet title under Section 1684 and to remove cloud on title and for ejectment. Neither defendant nor anyone for him ever paid any taxes on this land under this purported sale. No taxes were due the county, the taxes having already been paid. Sec. 1684, R.S. 1939, and cases cited; Mangold v. Bacon, 237 Mo. 496; Taff v. Tallman, 277 Mo. 157. (13) Instead, the proceedings so far as the refund of taxes is concerned in this case, are governed by the provisions of Section 11156 providing for the refund to the purchaser of the amount paid where the sale is void, the taxes having already been paid. R.S. 1939, sec. 11156; Huver v. Pickler, 94 Mo. 382; Wood v. Smith, 193 Mo. 484; State ex rel. Martin v. Childress, 345 Mo. 495. (14) Appellant, while a tenant of respondent could not set up a title adverse to respondent, he did not acquire respondent's title at the pretended sale. Lossing v. Shull, 173 S.W.2d 1; Renshaw v. Reynolds, 317 Mo. 484; Sec. 2973, R.S. 1939. (15) The land in question being within the boundary of the town of Marston as fixed by the county court in its order incorporating the town. The county court was without authority to assess it by governmental subdivision. R.S. 1939, sec. 10988; State ex rel. v. Hamilton, 293 S.W. 378.

OPINION

Clark, P.J.

Suit to determine and quiet title, to cancel certain deeds and in ejectment. From a decree for plaintiff, defendant has appealed.

The real estate involved comprises something more than twenty-one acres in the northwest quarter of the southwest quarter of section 25, township 22, range 13, in New Madrid County. Both parties claim through a common source, Seth S. Barnes, who died in 1920 owning the land. Respondent claims title through mesne conveyances from the executor of the Barnes estate and two tax deeds, all the deeds describing the land as lots and blocks in Barnes Addition to the Town of Marston.

Appellant's claim of title rests upon conveyances as follows: (1) deed by county collector to F. L. Steele, trustee for New Madrid County, November 17, 1941, for taxes for 1934, 1940, inclusive, consideration $ 360.99; (2) deed from F. L. Steele, trustee, to Meredith and Kimes, November 24, 1941; (3) quit claim deed from Meredith to Kimes, November 25, 1941; (4) warranty deed from Kimes to appellant, November 26, 1941, consideration $ 1200.00. All these deeds described the land as: "14 acres, more or less, in the northwest quarter of the southwest quarter (except town lots, except certain town lots) in section 25, township 22, range 13. Situated in New Madrid County, Missouri."

In 1899 a plat of Marston was filed in the recorder's office comprising land in section 26, but none in section 25. This plat shows certain named streets and unnamed alleys and blocks 1 to 9, inclusive.

On May 2, 1905, the Town of Marston was incorporated by order of the county court, including more land in section 26 than had theretofore been platted, also the northwest quarter of the southwest quarter of section 25, which includes the land now in controversy.

In February, 1908, ...