State ex rel. Buder v. Hughes

• Decision Date: 01 December 1942
• Docket Number: 37950
• Parties: State of Missouri ex rel. Oscar E. Buder, Relator, v. William C. Hughes et al., Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

166 S.W.2d 516

350 Mo. 547

State of Missouri ex rel. Oscar E. Buder, Relator, v. William C. Hughes et al., Judges of the St. Louis Court of Appeals

No. 37950

Supreme Court of Missouri

December 1, 1942

Rehearing Denied December 15, 1942.

Opinion of Court of Appeals quashed in part.

E E. Schowengerdt and Buder & Buder for relator.

(1) The general lien for State taxes is superior to all other liens. Fleckenstein v. Baxter, 114 Mo. 493; Rohrer v Oder, 124 Mo. 24; Meriwether v. Overly, 228 Mo. 218, 129 S.W. 1; Little River Drain. Dist. v. Sheppard, 7 S.W.2d 1013; State ex rel. Land v. Trimble, 2 S.W.2d 616, 318 Mo. 963; Jaicks v. Oppenheimer, 264 Mo. 693, 175 S.W. 972; Morey Engineering & Const. Co. v. St. Louis Artificial Ice Rink Co., 242 Mo. 241, 146 S.W. 1142, 40 L. R. A. (N. S.) 119, Ann. Cas. 1913C, 1200; Mo. Real Estate & Loan Co. v. Burri, 202 Mo.App. 242, 216 S.W. 570; Stafford v. Fizer, 82 Mo. 393; Williams v. Hudson, 93 Mo. 524, 6 S.W. 291; R. S. 1939, sec. 11109. (2) The purchaser at the tax sale acquires an inchoate right of title which may develop into an absolute estate in fee simple and all unpaid taxes existing at time of the purchase of said lands and the lien for which taxes was inferior to the lien for taxes for which said tract or lot of land was sold are wiped out, leaving to the holder of the inferior lien only the right of redemption provided for by the act. Session Acts 1933, pp. 437-438, secs. 9956a, 9957 and 9957a; R. S. 1939, secs. 11145, 11149, 11150; Schlafly v. Baumann, 108 S.W.2d 364, 341 Mo. 765; Little River Drain. Dist. v. Sheppard, 320 Mo. 341, 7 S.W.2d 1013; Richards v. Earls, 345 Mo. 260, 133 S.W.2d 381; State ex rel. Stogsdell v. Evans, 53 Mo.App. 663. (3) Where one purchases under foreclosure of property under a superior lien, his purchase becomes imbued with that superior lien as against inferior liens and those holding under foreclosure of inferior liens. Stafford v. Fizer, 82 Mo. 393; Richards v. Earls, 345 Mo. 260, 133 S.W.2d 381; R. S. 1939, sec. 11157. (4) Where a judgment does not dispose of the rights of all the parties it cannot be upheld as a final judgment. R. S. 1939, sec. 1236; Glass Co. v. Peper, 96 Mo.App. 595, 70 S.W. 910; Deck v. Wright, 135 Mo.App. 536, 116 S.W. 31; Baker v. St. Louis, 189 Mo. 375, 88 S.W. 74; Dixon v. Transit Co., 197 Mo.App. 646, 198 S.W. 431; Miller v. O'Connell, 235 S.W. 137; Bank v. Hodges, 228 S.W. 1081; Gas Co. v. Building Co., 264 S.W. 429; State ex rel. v. Klein, 140 Mo. 502, 41 S.W. 895; Boothe v. Loy, 83 Mo.App. 601; Strawhun v. Farrar, 296 S.W. 191; Russell v. Railway, 154 Mo. 428, 55 S.W. 454; Cunningham v. Franke, 18 S.W.2d 106; Liepman v. Rothschild, 262 S.W. 685; Knox v. Ry., 199 Mo.App. 64, 203 S.W. 225; Costello v. Kansas City, 209 Mo.App. 155, 232 S.W. 165; Grain Co. v. Railroad, 208 Mo.App. 485, 237 S.W. 159; State ex rel. v. Canterbury, 124 Mo.App. 241, 101 S.W. 678; Magee v. Trust Co., 339 Mo. 559, 98 S.W.2d 614. (5) The benefit judgment itself in street widening cases, as also the Charter, require something more than the mere ex parte application for an execution by the City or its assignee. It requires a proceeding in court to enforce payment and set the foreclosure of the property into action, and such proceeding requires notice to the then owners. City of St. Louis v. Brinckwirth, 204 Mo. 280, 102 S.W. 1091; Charter of the City of St. Louis, Art. XXI, Sec. 8. (6) The provisions of Jones-Munger Act are special and preclusive, intended to get the property subject to back taxes active and producing. Hence inviting purchasers and protecting them, yet affording all interested therein opportunity to redeem. In the administration of the laws for the collection of the public revenue, it is in the first instance necessary to ascertain the legislative intent in their several provisions. 2 Cooley on Taxation (4th Ed.), sec. 502, and cases cited thereunder.

Joseph F. Holland, James B. Steiner, Herbert F. Hahn and Oliver T. Johnson for respondents.

(1) When property is sold under the State lien for general taxes the lien is satisfied and submerged, and is not transferred to the holder of the purchase certificate unless and until he two years later receives an invalid conveyance. Sec. 11157, R. S. 1939. (2) A certificate of purchase at a general tax sale does not pass title. Donohue v. Veal, 19 Mo. 331; Kohle v. Hobson, 215 Mo. 213, 114 S.W. 952; Hilton v. Smith, 134 Mo. 499, 33 S.W. 464, 35 S.W. 1137; State ex rel. St. Louis v. Baumann, 153 S.W.2d 31. (3) A special benefit judgment in a condemnation proceeding, when unpaid, requires only an application for an execution by the City or its assignee. St. Louis Charter, Art. XXI, Secs. 5 and 8; Schwab v. St. Louis, 310 Mo. 116. (4) The lien or the revived lien of a special benefit judgment is not "wiped out" by the tax sale certificate of purchase held by the relator. St. Louis Charter, Art. XXI, Sec. 8. (5) The revived lien of the special benefit judgment is superior and prior to the deed of trust purchased by the appellant. St. Louis Charter, Art. XXI, Sec. 8. (6) The trustee in a deed of trust is not the actual owner and holder of the fee simple title to the real estate; so a purchaser of the deed of trust does not become the owner of such title. Lipscomb v. Talbott, 243 Mo. 1, 147 S.W. 798; Missouri R. E. & Loan Co. v. Gibson, 282 Mo. 75, 229 S.W. 675; Dickerson v. Bridges, 147 Mo. 235, 48 S.W. 825. (7) A lienor paying taxes only protects title for all lienors. Chrisman v. Hough, 146 Mo. 102, 47 S.W. 941; Landon v. Cottrill, 159 Mo. 308.

Douglas, P. J. All concur except Hays, J., absent.

OPINION

DOUGLAS

This is an original proceeding in certiorari to review for conflict with our decisions respondents' opinion in the case of City of St. Louis v. Koch (Mo. App.), 156 S.W.2d 1.

That case was a condemnation proceeding for widening and extending Natural Bridge Boulevard in St. Louis. Benefit taxes were assessed against the land here involved and judgment was entered for them on November 6, 1931. Later the land was sold for general taxes under the provisions of the Jones-Munger Act of 1933 (now Sec. 11117 et seq., R. S. 1939), then applicable to the City of St. Louis. Relator purchased the land at the tax sale and received a certificate of purchase. The Act provides that such a certificate may be exchanged for a deed if there is no redemption. Respondents found that the redemption period had not expired. Some time after the tax sale, and during the redemption period, the holder of the judgment for the benefit taxes applied to the circuit court for scire facias to revive the judgment. The judgment was revived and execution issued. We enter the case with relator's motion to quash the execution. The trial court overruled the motion. Its ruling was affirmed by the respondents, the judges of the St. Louis Court of Appeals. Relator comes here on the claim their decision is in conflict with our rulings.

There are a number of issues considered in respondents' opinion. The chief claim of conflict turns on the question whether the lien of the judgment for the benefit taxes is wiped out by the sale for general taxes. Relator contended in the court of appeals that the judgment lien was extinguished by the sale so that no execution could issue.

In the course of their opinion, respondents said:

"Appellant's contention that he, as purchaser at the tax sale on November 14, 1938, acquired an absolute estate in fee simple in the property and that said tax sale wiped out inferior liens, leaving to the holder thereof only the right of redemption under the statutes supra, cannot be sustained. Such contention is based upon the assumption that the lien of the judgment of November 6, 1931, for the benefit assessment was an inferior lien. It would follow of course that, if the judgment of November 6, 1931, was inferior, the same would be true of the revived judgment because the judgment as revived would necessarily be of the same quality and dignity as the original judgment, neither greater nor less. We are unable, however, to agree that said judgment lien was inferior to appellant's lien.

"Section 8 of Article XXI of the St. Louis Charter, under which the judgment in the condemnation proceedings was rendered, provides:

"'Sec. 8. The Court upon approving the commissioner's report shall render final judgment thereon reciting the report and adjudging that the City have and hold the property petitioned for, describing the same, for the purposes specified, upon payment of the damages less the benefits assessed in each instance; that so much of the report as is a judgment for benefits against specific property be a lien on such property for ten years from entry of the judgment, and prior to all other liens thereon; and that the City recover the respective benefits in excess of damages assessed in each instance against private property with interest from date of judgment and have execution therefor. . . .' (Emphasis ours.)

"While it is true the lien of the judgment of November 6, 1931 which was revived herein cannot be held to be prior or superior to the lien for general taxes on the property in view of the decisions of our Supreme Court (see Morey Engineering & Const. Co. v. St. Louis Artificial Ice Rink Co., 242 Mo. 241, 146 S.W. 1142, 40 L. R. A. (N. S.) 119, Ann. Cas. 1913C, 1200, and the many cases cited therein), nevertheless such lien was superior and prior to the deed of trust held by Buder as well as superior and prior to the tax sale certificate of purchase held by him after the sale for taxes. This by virtue of Section 8, Article XXI of the St. Louis Charter quoted supra, which specifically makes such a benefit judgment 'prior to all other liens thereon', except, as held in the Morey case, supra,...