State ex rel. Martin v. Childress

• Decision Date: 13 December 1939
• Docket Number: 36131
• Citation: 134 S.W.2d 136,345 Mo. 495
• Parties: State of Missouri at the relation and to the use of Harry Martin, Collector of Douglas County, v. R. E. Childress, Appellant
• Court: Missouri Supreme Court

134 S.W.2d 136

345 Mo. 495

State of Missouri at the relation and to the use of Harry Martin, Collector of Douglas County,

v.

R. E. Childress, Appellant

No. 36131

Supreme Court of Missouri

December 13, 1939

Appeal from Douglas Circuit Court; Hon. R. L. Gideon Judge.

Reversed.

Jos V. Pitts for appellant.

"The fact that the petition in an action to enforce back taxes correctly describes the land, does not validate or cure the defective description of the land in the back tax bill." State ex rel. Flentge v. Burrough, 174 Mo. 700. Section 9782, Revised Statutes 1929, carefully provides for an "Accurate description of each tract of land assessed for the very basis of taxation." State ex rel. v. Railroad, 114 Mo. 1. As the statute requires an accurate description, one that is correct is essential to a valid assessment, in the absence of which a valid tax cannot be assessed. Abbott v. Lindenbower, 42 Mo. 162; State ex rel. v. Thompson, 149 Mo. 441; State ex rel. v. Mission Free School, 162 Mo. 332. A description of land as: -- "11 Acres, more or less NE. Part of NE 1/4 NW 1/4 22-25-10 2500" is too uncertain to constitute a valid tax assessment and basis for a lien, since no boundaries are given and judgment sale could convey no particular parcel of land. State ex rel. Smith v. Williams, 216 S.W. 535. An assessment describing the land as ".75 of an acre in a certain 40 A. tract" is invalid for insufficiency of description. State ex rel. Ward v. Linney, 192 Mo. 49; State ex rel. Kerstner v. Sanford, 127 Mo. 368; State ex rel. Ross v. Lamb, 25 S.W.2d 83. Section 698, Revised Statutes 1929, provides that all actions shall be brought in the name of the real party in interest.

John M. Bragg for respondent.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This cause was commenced September 5, 1936, to enjoin defendant from moving a house from a half acre tract of land upon which there were taxes due and unpaid. A temporary injunction was made permanent and defendant appealed.

It is alleged that there was "due the sum of $ 74.61, which has been regularly assessed against the following described lands, to-wit" (here follows description); that "said taxes are long past due and that defendant has refused and failed to pay the same;" that plaintiff "is advertising said lands for sale under the laws of the state of Mo. (Jones-Munger Act, Laws 1933, pp. 425 et seq.), and that the same will be sold on the 1st Monday of November of this year" (1936); that "on said land there is a large building and that said building is the most valuable part of said land, and that said defendant is threatening to remove said building from said land; that if said building were removed the lands would not be worth the above sum of money, and that the taxes on said land could not be recovered; that the defendant does not intend to pay said taxes and will not pay the same if permitted and allowed to remove said building, and if restrained from removing said building defendant will pay aforesaid taxes." Other allegations were made, but it is not necessary to deal further with the petition.

A temporary restraining order was made on the day petition was filed. Defendant answered by a general denial, and also filed motion to dissolve. Among the grounds set out in the motion was this: "The assessment of taxes herein is against a 'part of NW 1/4 NW 1/4, Sec. 23, Twp. 27, range 17, and is vague, uncertain and void for uncertainty.'"

The record is not clear at all, and we infer and assume some facts. Martin was county collector of Douglas County, and defendant owned a half acre of land in the county, described correctly in a deed record introduced as "beginning on rock corner on east line of NW 1/4 NW 1/4, Sec. 23, Twp. 27, range 17, 34 rods and 7 ft. north of SE corner of said NW 1/4 NW 1/4; thence west 7 rods; thence south 11 and 3/7 rods; thence east 7 rods; thence north 11 and 3/7 rods to place of beginning, containing 1/2 acre."

The land was described on the assessor's books and on the collector's books as a "part of NW 1/4 NW 1/4, Sec. 23, Twp. 27, range 17," and, under this description, was being advertised for sale when this suit was filed.

It is not claimed that such a suit as this cannot be lawfully maintained, and without ruling that question, we proceed as though the remedy here invoked is proper on the part of a collector in the discharge of his official duties to collect taxes.

As we view the situation, two questions are presented, first, have we jurisdiction? and second, are the facts sufficient to support the judgment? Respondent has not favored us with a brief, and defendant, appellant here, says nothing about the question of jurisdiction. It is our duty, however, to determine this question. [Perkins v. Burks et al. (Mo.), 61 S.W.2d 756-757, and cases there cited; Rust Sash & Door Co. v. Gate City Bldg. Corp. et al., 342 Mo. 206, 114 S.W.2d 1023.] If we have jurisdiction of this appeal it is under that part of Section 12, Art. VI, Constitution, providing that an appeal, "in cases involving the construction of the revenue laws of the State," lies to the Supreme Court.

Defendant contends that the description of the land on the tax books and in the notice of sale is no description at all, and is wholly insufficient to support a valid sale, and therefore insufficient to support the present judgment. Section 9782, Revised Statutes 1929, Mo. Stat. Ann., sec. 9782, p. 7891, provides, among other things, that the assessor's "'real estate book' . . . shall contain an accurate description of the land (in the county and subject to assessment) by the smallest legal subdivisions, or by smaller parts, lots or parcels, when sections and the subdivisions thereof are subdivided into parts, lots or parcels," and this section further provides that "at the close of each of the owners' lists (on assessor's books), the assessor shall place all the lands that appear to belong to the said owner, which cannot be properly described by numerical order, as contemplated in this section, which shall be otherwise properly described, indicating the quantity and location thereof."

Section 9784, Revised Statutes 1929 (Mo. Stat. Ann., sec. 9784, p. 7893), prior to repeal (Laws 1939, p. 840), made it the duty of the county court to "furnish the county recorders of the respective counties with a book, to be known as and denominated the 'land list,' which shall contain all lands in the county, arranged as nearly as may be in numerical order of range, township, sections and parts of sections, by the least legal subdivisions. . . . In making up this book, if there be any land in any section or block that cannot be described as set forth above, it shall be otherwise briefly described, indicating the quantity and location thereof. . . ."

Section 9782, supra, in addition to the provisions above set out, makes it the "duty of the assessor, each year, in compiling" the real estate book "to procure the descriptions of the land and the names of the owners from the book known as and denominated 'the land list' kept by the recorder." As to whether or not the recorder of Douglas County kept such a book as required by Section 9784, does not appear, but the duty of the assessor to have an accurate description of the land and the names of the owners on his books is not contingent on the county court furnishing to the recorder the land list book provided for by Section 9784.

State ex rel. Hadley v. Adkins et al., 221 Mo. 112, 119 S.W. 1091, was in certiorari, and the defendants were the county judges of McDonald County. The purpose was to quash an order of the county court selecting a certain bank as the county depository. The certiorari proceeding was based on the ground that there had been no notice for bids published as required by law. The trial court quashed the order of the county court, and the cause was appealed to the St. Louis Court of Appeals. The Court of Appeals transferred the cause to the Supreme Court on the theory that the construction of the revenue laws of the State was involved. [State ex rel. Hadley v. Adkins, 119 Mo.App. 396, 100 S.W. 661.] This court, on the question of jurisdiction, reviewed many cases, and held that it had jurisdiction. The court said (221 Mo. l. c. 118, 119 S.W. l. c. 1093): "From a review of the cases we conclude: (1) That when our jurisdiction is put upon the ground that the construction of the revenue laws of the State is involved, the law up for construction must be a State law . . .; (2) that it makes no difference where the law is to be found, whether under the title of 'revenue' or any other title, so long as it relates to the subject matter of revenue; (3) that the revenue must be directly and primarily concerned, not merely indirectly or as an incident; (4) that the term 'revenue law' covers and includes laws relating to the disbursement of the revenue and its preservation as well as provisions relating to the assessment, levy and collection of it . . ."

State ex rel. Broughton v. Oliver, 273 Mo. 537, 201 S.W. 868 was an action by the collector of New Madrid County to collect assessments levied in a drainage district. The cause reached the Springfield Court of Appeals a...