State ex rel. Rice v. Powell

• Decision Date: 31 August 1869
• Citation: 44 Mo. 436
• Parties: STATE OF MISSOURI ex rel. H. L. RICE et al., Appellants, v. JAMES L. POWELL, Respondent.
• Court: Missouri Supreme Court

44 Mo. 436

STATE OF MISSOURI ex rel. H. L. RICE et al., Appellants,

v.JAMES L. POWELL, Respondent.

Supreme Court of Missouri.

August Term, 1869.

Appeal from Fifth District Court.

Strong & Chandler, for appellants.

I. If the collector so made his return (after the land tax was tendered to him) as to induce and cause the County Court to render judgment against the land for both land and personal tax, he violated the law, and is liable in this action.

II. The relators were bound to take notice of all that the collector or County Court might lawfully do, but they were not bound by any unlawful act of the collector or County Court in the premises.

III. The collection of taxes is against common right, and the collector must strictly pursue the authority given him by law, or he is liable. (19 Mo. 369-71; 37 Mo. 280; 6 Mo. 64; 9 Mo. 868; 13 Mo. 437; 15 Wend. 579; 7 J. J. Marsh. 166.)

Asper & Pollard, for respondent.

I. The relators herein had their day in the County Court, and they are consequently precluded from bringing this suit. (Sess. Acts 1864, p. 85, § 2; id. 86, §§ 7, 8.)

II. The defendant had executed the order of the County Court in selling said lands, and is not liable on his bond, for he committed no laches as collector. (County of Lewis v. Tate, 10 Mo. 650; Walker v. City of St. Louis, 15 Mo. 563; Christy's Adm'r v. City of St. Louis, 20 Mo. 12, 13; Moss et al. v. State, 10 Mo. 338; Broom's Leg. Max. 97.)

III. It was legal for defendant to sell said real estate for the taxes of both personal and real property. No property is exempt from sale for taxes. (Sess. Acts 1864, p. 78, § 22.) There is no distinction in personal or real tax in delinquent list. (Sess. Acts 1864, p. 80, §§ 37-8.)

BLISS, Judge, delivered the opinion of the court.

This was a suit against Powell, as sheriff and tax collector of Daviess county, for refusing to receive the legal tax assessed upon certain real estate, returning the same as delinquent, and finally selling it. Rice and Caldwell purchased a farm of one Hays, after the assessment of the tax of 1865, and hence held the land charged with the tax. There was also upon the collector's books an assessment of a tax upon the personal property of said Hays. Rice and Caldwell in due season offered to pay, and tendered to the sheriff the tax upon the land; but he refused to receive it unless they would also pay the tax upon the personal property. This they did not do. The land was returned delinquent; judgment was rendered by the County Court for the amount of both taxes, interest, costs, etc.; the land was sold, and afterward redeemed by said Rice and Caldwell upon payment of the whole amount, with interest, costs, and penalty. They now seek to recover back of the sheriff upon his official bond, as damages for its breach, the whole amount so paid. Defendant demurred, and judgment was rendered in his favor by the Circuit Court, which judgment was affirmed in the District Court.

The doctrine that the sheriff is liable upon his official bond for his wrongful acts under color of his office has been long established in Missouri, and this liability extends to him as collector of taxes in those counties where it is made his duty to collect them. (State, etc., v. Moore, 19 Mo. 369; State, etc., v. Shacklett, 37 Mo. 280.) The demurrer, therefore, upon the general ground of non-liability, is not well taken. But it is clear that he is not liable for executing the judgment of the County Court by selling the land or executing its order of sale. So far, he did only what he was commanded to do by his precept; and the court having given judgment against the land and ordered its sale, the matter being within its jurisdiction, and the plaintiffs having had their day in court, he is protected in its execution. The principle that thus protects him is too familiar to require elucidation.

He can not, however, make this plea in justification of his proceedings before the judgment. The tax list was placed in his hands for collection, containing an assessment against the real estate and an assessment of the personal property of one Hays. By the act of 1864, as well as by the General Statutes of 1865, the real and personal property must be listed and assessed separately. Section 31 of the act of 1864 is the same as section 41, chapter 12, Gen. Stat. 1865; and section 32 also expressly provides that “each tract of land and town lot shall be assessed, valued, and listed separately, and each kind of property shall be assessed separately from any other kind.” A copy of this assessment was placed in the hands of the collector, containing the land and town lots of Hays, listed separately from each other and also separately from his personal property. The plaintiffs had purchased this real estate, and had a right to pay the taxes upon it, but were under no obligation whatever to pay upon the personal property. The action of the sheriff was sustained below partly on the ground that those taxes upon the personalty were a lien upon the realty. But I have searched in vain for any authority for this position. The State may be, and often is, cheated out of taxes due upon personal property by those who sell their land and remove their personal effects beyond the reach of the collector. But the statute...