State ex rel. Brassfield v. Hurt
| Decision Date | 19 December 1892 |
| Parties | The State ex rel. Brassfield, Appellant, v. Hurt et al |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court.--Hon. Jas. M. Sandusky, Judge.
Plaintiff as collector of Clay county, sued to recover the amount of certain taxes levied for the year 1873 upon lands of defendants in that county.
Upon a trial by the court, a judgment for defendant followed and plaintiff appealed in due course, after the usual exceptions.
Reversed and Remanded.
William M. Burris for appellant.
(1) The assessment was regular and the assessor's book properly verified. Wagner's Missouri Statutes, 1872, sec. 61. p 1170. (2) The tax book was made out and certified by the clerk of the county court as the law required. Wagner's Missouri Statutes, 1872, sec. 65, 66, p. 1171. (3) Back taxes are a lien in favor of the state and the lien existing heretofore is retained. Revised Statutes of Missouri, 1889 sec. 7677. (4) The failure of the collector to return the delinquent list of taxes under oath does not affect the validity of the taxes nor the right of the state to enforce its lien therefor. State ex rel. v. Schooley, 84 Mo. 447; Revised Statutes of Missouri, 1889, sec. 7670; Wagner's Statutes of Missouri, 1872, sec. 172, p. 1194. (5) Each tract of land is chargeable with its own taxes, no matter who is the owner, nor in whose name it is or was assessed. Revised Statutes of Missouri, 1889, sec. 7703; Revised Statutes of Missouri, 1879, sec. 6853; Wagner's Missouri Statutes, 1872, sec. 203, p. 1201; State ex rel. v. Gibson, 12 Mo.App. 1. (6) Irregularities and omissions shall not invalidate proceedings. Revised Statutes, 1889, sec. 7708; U. S. 1872, sec. 241, p. 1212. (7) The revenue law makes the back-tax bill prima facie evidence, that all that is required has been done. When an irregularity occurs, and such irregularity is shown, the prima facie character of the back-tax bill is destroyed. State ex rel. v. Scott, 96 Mo. 72. However, other evidence may be introduced to show that a proper assessment and levy was made and when this is shown no irregularity or omission can prevent the state from having its lien enforced. State ex rel. v. Schooley, 84 Mo. 447; Revised Statutes of Missouri, 1889, sec. 7670 and 7708; Wagner's Statutes of Missouri, 1872, sec. 172, p. 1194; Wagner's Statutes of Missouri, 1872, sec. 241, p. 1212.
J. E. Lincoln for respondents.
(1) The land was not assessed to the patentee or purchaser, as required by the statute (See Wagner's Statutes, 1872, sec. 49, page 1167, which is same as Revised Statutes, 1879, sec. 6706), but was put down as "unknown." Such an assessment was void. Abbott v. Lindenbower, 42 Mo. 162; Gaines v. Fender, 82 Mo. 508; Hubbard v. Gilpin, 57 Mo. 441; Hume v. Wainscott, 46 Mo. 145; Blevins v. Smith, 104 Mo. 590; 13 Mo.App. 433. (2) The assessment for 1878, under the statute was made August 1, 1872. The so-called assessor's book, introduced in evidence, did not show what year it was for. The affidavit to it made by Thos. A. Harsell, as shown by the book, was made in January, 1872, making it impossible for it to be the assessment for 1873. The evidence of B. B. Corbin could not change this date and make it a valid assessment. State ex rel. v. Phillips, 102 Mo. 668; State ex rel. v. Cook, 82 Mo. 185; State ex rel. v. Schooley, 84 Mo. 447; Howard v. Heck, 88 Mo. 456; Pike v. Martindale, 91 Mo. 268.
Barclay J. Gantt, Thomas and Macfarlane, JJ., as indicated in their separate opinion. Gantt, Thomas and Macfarlane, concurring.
In Banc.
Plaintiff's action failed in the circuit court because of a ruling in the form of an instruction that the evidence was insufficient to support a recovery.
Several questions arise in considering its correctness.
I. In the assessment of the land for 1873, the owner was described as "unknown." It appears that it then belonged to the widow and heirs of George Lincoln deceased to whom the land had been conveyed by United States patent in 1843. The patent had been of record in the office for the registry of deeds in that county since that year.
The law in force at the time of this assessment required the assessor to arrange the list of lands assessed, "as nearly as may be, in numerical order of range, township, section and parts of section," etc. * * * "with the owners' names, if known, and, if not, then with the name of the original patentee, grantee or purchaser from the federal government, the state or county, as the case may be," etc. (Session Laws, 1872, sec. 49, p. 92.)
But another section of the same law declared that (Session Laws, 1872, sec. 203, p. 124).
These sections relate to the same subject-matter, and the latter is obviously designed to furnish a rule for the construction of that first quoted. We simply give effect to the plain intent of the law in declaring that the assessment in question is not weakened because of the fact that the owner's name was returned as "unknown."
II. Defendant next asserts the invalidity of the assessment for 1873, because it appears on its face to have been verified by the assessor, January 20, 1872.
But the officer who authenticated the jurat was introduced as a witness and testified without objection that the year "1872," written by him therein, was a clerical error; that it should read "1873;" and that the book in which it appeared was the assessment book for 1873.
The entry of "1872" would no doubt be treated as merely a clerical error in the circumstances, without the aid of extraneous testimony, inasmuch as the assessment book for 1873 was required by law to be prepared at a later date than January 20, 1872, and, in the absence of any showing to the contrary, it would be presumed to have been prepared at the time prescribed by the law. Its written contents moreover disclose that it could not have been in existence until long after January, 1872. So that the parol evidence was merely corroborative of the inference which the law would draw without it. There certainly is nothing in such an error to nullify the assessment.
III. The plaintiff's evidence consisted of the back-tax bill, accompanied with independent proof of a regular levy and assessment of the taxes for the year 1873, upon the land of the defendants. The only objections to the levy and assessment have already been disposed of. It is hence unnecessary to set forth the details of the testimony on that part of the case. But defendants further claim that plaintiff cannot reach a judgment because proper and sufficient action of the county court upon the delinquent list does not appear.
On this branch of the case it will probably be more satisfactory to the parties to refer to the testimony more particularly.
The delinquent list, containing the tax charge against this land for 1873, was filed April 20, 1874, and on that day the county court made the following order:
"Now comes John J. Moore, collector of the revenue for Clay county, Missouri, and makes his annual settlement for all taxes collected by him, on the tax book for the year 1873, for state purposes, in which settlement said collector charges himself as follows (then come the debit items of the state revenue account), and claims credits as follows:
By land delinquent list--state revenue
$ 785 64
By land delinquent list--state interest
982 05
By personal delinquent list--state revenue
494 60
By personal delinquent list--state interest
618 25
By personal erroneous assessment--interest
8 52
By personal erroneous assessment--revenue
6 82
By real erroneous assessment--state interest
By real erroneous assessment--state revenue
By delinquent of forfeited list taken upon the tax book--state
revenue
By delinquent of forfeited list taken upon the tax book--state
interest
Errors on delinquent on forfeited list taken upon tax book--
state revenue
By errors on delinquent on forfeited list taken upon tax book--
state interest
135 16
* * * (Other items) * * *
Total credits
$ 21,066 43
Balance due state less a credit of collector's commissions--
allowed by the state auditor
$ 2,145 08
Commissions
667 00
Balance due state
"Which settlement the court approves and orders the state auditor to be certified hereof." Then immediately follows a similar entry of particulars in respect to the land delinquent list for county revenue and funded debt taxes, at the close of which is this language: "Which settlement the court receives, approves and orders filed."
Defendants contend that, under the ruling of this court in State ex rel. v. Scott (1888), 96 Mo. 72, 9 S.W. 21, the above recited proceedings of the county court do not furnish a sufficient foundation for the present action. That contention, however, involves a misconception of the scope of that decision. The opinion discusses the force and effect of a back-tax bill as evidence of liability, and holds that its character as prima facie evidence is destroyed when it is shown that the bill is predicated on a back-tax list "which, uncorrected and without any order of the court, the clerk...
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