State ex rel. McGhee v. Baumann

• Decision Date: 10 March 1942
• Docket Number: 37900,37902
• Parties: State of Missouri at the relation of David H. McGhee, Relator, v. William F. Baumann, Collector of Revenue of the City of St. Louis. State of Missouri at the relation of Oliver L. Becker, Relator, v. William F. Baumann, Collector of Revenue of the City of St. Louis
• Court: Missouri Supreme Court

160 S.W.2d 697

349 Mo. 232

State of Missouri at the relation of David H. McGhee, Relator, v. William F. Baumann, Collector of Revenue of the City of St. Louis. State of Missouri at the relation of Oliver L. Becker, Relator, v. William F. Baumann, Collector of Revenue of the City of St. Louis

Nos. 37900, 37902

Supreme Court of Missouri

March 10, 1942

Rehearing Denied April 3, 1942.

Alternative writs quashed.

Philip C. Wise, Sam Levin and E. H. Wayman for relator McGhee.

(1) Mandamus is the proper remedy to compel the issuance of the deeds to the parcels here involved. State ex rel. St Louis v. Baumann, 153 S.W.2d 31. (2) The title of a purchaser at a sale for taxes is not subject to unpaid taxes existing at the time of sale, the lien for which taxes was inferior to the lien of the taxes for which the property was sold. Laws 1933, p. 425, sec. 9957, now Sec. 11149, R. S. 1939. (3) Taxes are superior liens in the reverse order of their accrual, and therefore taxes unpaid and existing at the time of sale for years preceding the years' taxes for which the property was sold are inferior liens to such last mentioned taxes. Jaicks v. Oppenheimer, 175 S.W. 972; Drainage District v. Sheppard, 7 S.W.2d 1013; McGrew v. Carr, 21 S.W.2d l. c. 641. (4) A purchaser at a sale for taxes is not required to pay, as a condition to receiving a deed, taxes the lien for which was foreclosed by the sale. Laws 1933, p. 425, sec. 9957c, now Sec. 11152, R. S. 1939. (5) It is elementary that the sale of property under a superior lien forecloses an inferior lien, especially where, as in the case at bar, the price bid does not exceed the amount of the superior lien. (6) When the Legislature said in Sec. 11152, R. S. Mo. 1939, that a holder of a certificate of purchase should not be required to pay taxes, the lien for which was foreclosed by the sale under which such holder makes demand for a deed, it evidently meant taxes referred to in Sec. 11149 as "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," since it is specifically provided by the last mentioned section that the estate acquired by a purchaser at a tax sale shall not be subject to such inferior taxes.

Dubail, Judge & Winter for relator Becker.

(1) Supreme Court has power to issue writs of mandamus, and to hear and determine the same. Constitution of Missouri, Art. VI, Sec. 3. (2) Mandamus is the proper remedy to compel a collector of revenue to make and deliver a deed conveying to purchaser land bought at tax sale under the provisions of the "Jones-Munger Act of 1933," Laws 1933, pages 425 to 449. State ex rel. St. Louis v. Baumann, 153 S.W.2d 31. (3) Under Laws of Missouri 1933, page 438, Section 9957, now Section 11149, R. S. Mo. 1939, it is the duty of the collector, if no person shall redeem lands sold for taxes thereunder within two years from the sale, at the expiration of such two years, and on production of a certificate of purchase, to execute and deliver to the purchaser a conveyance of the real estate so sold. Laws 1933, p. 438, sec. 9957, now Sec. 11149, R. S. 1939. (4) Collector's demand for payment of taxes for years 1914 to 1929, inclusive, as condition precedent to giving deed, unlawful since taxes for 1914 to 1949, inclusive, being inferior to taxes for 1930 to 1936, inclusive, sale for 1930 to 1936 taxes, foreclosed liens of 1914 to 1929 taxes and vested an absolute fee simple title in purchaser at such sale. (a) Laws 1933, p. 438, sec. 9957, now Sec. 11149, R. S. 1939; Laws 1933, p. 440, sec. 9957c, now Sec. 11152, R. S. 1939. (b) The general rule is that the priority of general tax liens is in the reverse order of their accrual, that is, the latest tax lien is paramount to a prior tax lien. Little River Drainage Dist. v. Sheppard, 320 Mo. 341, 7 S.W.2d 1013; Jaicks v. Oppenheimer, 264 Mo. 693, 175 S.W. 972. (5) In interpreting the "Jones-Munger Act," this court may legitimately infer that it was the intention of the Legislature in enacting said act, that sales under said act should discharge all taxes delinquent at time of sale, for in interpreting a law it is legitimate to take into consideration the history which led up to its enactment, the surrounding circumstances, and the ends intended to be accomplished thereby. Southwest Mo. Light Co. v. Scheurich, 174 Mo. 235, 73 S.W. 496; State ex rel. Aull v. Field, 112 Mo. 554, 20 S.W. 672; State v. Hanson, 234 Mo. 583, 137 S.W. 968; Boll v. Condie-Bray Glass & Paint Co., 11 S.W.2d 48. (6) Section 11130, R. S. Mo. 1939, provides that when land is sold by collector for third successive time, as herein, the purchaser shall be entitled to a deed after paying, in addition to his bid, all taxes that became due and payable on such land subsequent to the date of the taxes included in such advertisement and sale. The fact that the Legislature of Missouri has subsequently so interpreted the statute here in question, while not a controlling fact, is one entitled to respectful consideration. State ex inf. Gentry v. Long-Bell Lbr. Co., 321 Mo. 461, 12 S.W.2d 64; Hall v. Sedalia, 232 Mo. 344, 134 S.W. 650.

James A. Waechter and Donald Gunn for respondent.

A sale for taxes under the Jones-Munger Law does not operate as a foreclosure of the lien of any general real estate taxes existing at the time of the sale, but not included therein. Secs. 11149, 11152, 11168, R. S. 1939; Laws 1933, p. 421; 26 R. C. L., p. 404; State ex rel. v. Werner, 10 Mo.App. 41; Excelsior Springs v. Henry, 99 Mo.App. 450; State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079; Holt v. Rea, 320 Mo. 1237, 52 S.W.2d 877.

OPINION

Clark, J.

These two cases involve a construction of certain phases of the Jones-Munger Act. (Laws of 1933, p. 425, now part of Article 9, Chapter 74 of the Revised Statutes for 1939; Mo. Stat. Ann., pp. 7980-8012.) Legal questions are the same in both cases, each case being an original proceeding in mandamus to compel the Collector of the City of St. Louis to deliver tax deeds conveying certain real estate to relator as the holder of certificates of purchase issued by the collector pursuant to sales for delinquent taxes in November, 1937. The sales were for delinquent taxes for the years 1930 to 1937, both inclusive. All the real estate had been offered at two previous sales, in 1935 and 1936, without any sufficient bids being received. Late in the year of 1941, more than two years after the sales in November, 1937, no person having offered to redeem any of the parcels, each relator tendered to the collector all delinquent and unpaid taxes on the tracts for the years 1937 to 1941, both inclusive, and demanded deeds. The respondent collector refused to execute and deliver deeds unless relators would also pay delinquent taxes for the year 1929, and earlier years, in some instances running as far back as 1914.

Case No. 37900 involves nineteen separate tracts. The record shows that suits were filed to enforce the lien for delinquent taxes on these tracts in various years, the earliest suit shown being in November, 1917, and the latest being in December, 1931. The record also shows that judgments were rendered in some of these suits in the years 1923, 1927 and 1932.

Case No. 37902 involves four separate tracts. The record shows tax suits were filed in various years, the first being in 1918, and the last in 1930, but does not show whether or not the suits were reduced to judgment.

In each case the relator claims: that taxes are superior liens in the reverse order of their accrual and, therefore, by the express wording of the Jones-Munger Act, a sale for taxes forecloses the lien for all years prior to the year or years for which the sale is made.

The Jones-Munger Act, enacted in 1933, repealed certain statutes which provided for the collection of taxes on real estate by suit and substituted a method of advertisement and sale without suit. The Act, at the time of the sales involved in this case, was applicable to the entire state, including the city of St. Louis.

Section 9957 (Laws of 1933, page 438, now sec. 11149, R. S. 1939) provides that if no person shall redeem the land within two years from the sale the collector shall execute a conveyance to the purchaser, "which shall vest in the grantee an absolute estate in fee simple, subject, however to all claims thereon for unpaid taxes except such 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. . . ."

Section 9957c (now sec. 11152, R. S. 1939) provides "Every holder of a certificate of purchase shall before being entitled to apply for a deed . . . pay all taxes that have accrued thereon since the issuance of said certificate, or any prior taxes that may remain due and unpaid on said property, and the lien for which was not foreclosed by sale under which such holder makes demand for deed."

Relators concede that this court has never expressly held that liens for general taxes are superior in the reverse order of their accrual, but say we have so held as to special taxes and have recognized the same rule to apply to general taxes, citing: Jaicks v. Oppenheimer, 264 Mo. 693, 175 S.W. 972; Drainage District v. Sheppard, 320 Mo. 341, 7 S.W.2d 1013; McGrew v. Carr, 223 Mo.App. 1231, 21 S.W.2d 640.

In Jaicks v. Oppenheimer, supra, this court, en banc, held that the lien of a tax bill for street improvement against property assessed with benefits is superior to tax bills previously issued for prior improvements. That was the only question decided. The opinion was by Judge Bond; two judges concurred; one judge concurred in the result, and three judges...