Sligo Furnace Co. v. Hogue

• Decision Date: 05 March 1921
• Docket Number: No. 21797.,21797.
• Citation: 229 S.W. 190
• Parties: SLIGO FURNACE CO. v. HOGUE et al.
• Court: Missouri Supreme Court

229 S.W. 190

SLIGO FURNACE CO. v. HOGUE et al.

No. 21797.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Suits by the Sligo Furnace Company against Samuel C. Hogue and another and their unknown heirs, devisees, donees, etc. Judgment for the defendants, and the plaintiff appeals. Affirmed.

Edgar & Edgar, of Ironton, and Watts, Gentry & Lee, of St. Louis, for appellant.

Arthur T. Brewster and Sam M. Brewster, both of Ironton, for respondents.

BROWN, C.

The judgment appealed from is the determination of two suits instituted in the circuit court for Iron county, to secure a judicial determination of the title to 200 acres of land in that county described as follows: The south half of the southwest quarter of section 11 and the north half and southeast quarter of the northwest quarter of section 14, all in township 34 north of range 1 west. The defendant heirs were successful in the trial, and are consequently respondents here.

The plaintiff claims through a sheriff's deed dated November 20, 1880, purporting to convey the land to one Eli D. Ake, under judgment of the circuit court of Iron county, for taxes, rendered May 1, 1880, against Francis Wicks and others, and reciting an execution thereon against Francis Hicks as authority for the sale. Its granting words are as follows:

"Now, therefore, in consideration of the premises, and of the sum of five dollars to me, the said sheriff, in hand paid by the said Eli D. Ake, the receipt whereof I do hereby acknowledge, and by virtue of the authority in me vested by law, I, James Buford, sheriff aforesaid, do hereby assign, transfer and convey unto the said Eli D. Ake all the above described real estate, so stricken off and sold to him, that I might sell as sheriff as aforesaid, by virtue of the aforesaid judgment, execution and notice."

The plaintiff claims through Ake, the grantee in this deed, the title of defendants' ancestor, Francis Wicks of Adgar county, Ill., who owned the land since 1860.

The tax suit was originally instituted against Hogue alone, and, upon an averment to that effect in the petition, notice published to bring him into court as a nonresident. Afterwards, by leave of court, Francis Wicks was made a party defendant, simply by the insertion of his name as defendant in the caption. Thereupon the order of publication was "extended" upon the ground that it had not been "published according to law," and was published without any affidavit of nonresidence or amendment of the petition in that respect. The execution is, as recited in the deed, against "Hicks," instead of "Wicks." The deed recites that—

The sheriff, "did * * * expose to sale at public auction for ready money, the above-described real estate, and Eli D. Ake being the highest bidder for the following described real estate, viz.: The south half of the southwest quarter of section eleven (11), the north half of the northwest quarter of section four teen (14) and the southeast quarter of the northwest quarter of section fourteen (14), all in township thirty-four (34), range one west, at the price and sum of five dollars, the said last above described tract was stricken off and sold to the said Eli D. Ake for the bid therefor by him as above set forth."

We have referred in our statement to this record with more particularity than would otherwise be necessary, because it illustrates an abuse in the processes of the law the correction of which is peculiarly within the province of the courts. It is here presented to us in two distinct aspects. The duty of the owners of property to pay the taxes levied for its protection appeals strongly to every citizen. In this case $51.50 of unpaid and delinquent taxes had accumulated on this property in 1880, when the officers charged with that duty undertook to collect it by enforcing it as a charge upon the land. These proceedings were taken, and resulted, as appellant contends, in the sale of the land for $5. The primary object of the proceeding had failed. No tax was collected for the public, but the title to the land had been taken from the owner without any compensation to them or the state, unless the latter had profited by the fact that it had passed into the hands of one who might afterwards become a taxpayer. We cannot presume that the assessment amounted to confiscation, and must look elsewhere for the cause of the failure to realize anything from the property. In this we find no difficulty.

While in bringing the suit an additional 10 per cent. imposed as a fee for the collection, $20 for the cost of notice by publication, and other costs of suit, were immediately interposed between the state and its chance to realize anything, it was all so carelessly done that the actual owner had not been discovered, and the suit had been brought against another. In correcting this the avoidance of unnecessary exertion seems to have been a controlling element,...