State ex rel. Rosenblatt v. Heman

• Decision Date: 24 June 1879
• Citation: 7 Mo.App. 420
• Parties: STATE OF MISSOURI, TO THE USE OF M. A. ROSENBLATT, Plaintiff in Error, v. FREDERICK HEMAN, Defendant in Error.
• Court: Missouri Court of Appeals

7 Mo.App. 420

STATE OF MISSOURI, TO THE USE OF M. A. ROSENBLATT, Plaintiff in Error,

v.FREDERICK HEMAN, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Jun. 24, 1879.

1. The revenue law of 1870 did not operate proprio vigore to divest title in lands forfeited for the non-payment of the taxes of 1868, and resumed as sold to the State; title was not divested until the land was sold by the State to private purchasers, the State meanwhile retaining a lien.

2. The pecuniary claim for taxes was not extinguished by the judgment of the County Court on the tax-list, and the subsequent forfeiture to the State.

3. The law of 1877 authorizing proceedings in the Circuit Court to obtain judgment against the property for back taxes goes only to the remedy, and is not retrospective within the meaning of the constitutional prohibition.

4. The Statute of Limitations may be so changed as to extend the limit, at any time before the action is actually barred.

5. The statute did not begin to run against the claim of the State for taxes of 1868 until an action accrued for them in 1872.

6. The State, in 1879, had a subsisting cause of action for the back taxes of 1868, not barred by the Statute of Limitations.

ERROR to St. Louis Circuit Court.

Reversed and remanded.

KING, CHAPIN & KING, M. B. JONAS, and F. SPIES, for plaintiff in error: The fact that the State allowed and required the property to be assessed after forfeiture, was a waiver of the forfeiture.-- Clark v. Strickland, 2 Curt. 439. But the lien would still remain in favor of the State.-- Goddard v. Renner, 57 Ind. 532, 536; Wood v. Colvin, 5 Hill, 228; Bodine v. Moore, 18 N. Y. 347. The act of April 12, 1877, is not retroactive or retrospective.-- The State ex rel. v. Hays, 47 Mo. 187; De Cordova v. Galveston, 4 Texas, 470; Carondelet v. Picot, 38 Mo. 125, 130; Blackw. on Tax-Titles, 1; Cooley on Tax. 1; Cooley's Const. Lim. 361, 362; Smith v. Byron, 34 Ill. 364; Paschal v. Perez, 7 Texas, 365; Woodfin v. Hooper, 4 Humph. 13; Hope v. Johnson, 2 Yerg. 123; Wellshear v. Kelly, 8 Cent. L. J. 434. No statute of limitations can begin to run until a cause and right of action exists, and has accrued to some person who is capable of suing upon it.-- Dillon v. Bates, 39 Mo. 292, 301; Wickersham v. Russell,51 Pa. St. 71; Council v. Moyamensing,2 Pa. St. 224. No action would lie for the recovery of unpaid taxes until such action should be or was given by statute.-- Carondelet v. Picot, 38 Mo. 125, 130; Brenchweh v. Drake, 31 Ohio St. 652. There can be no doubt as to the power of the Legislature to make changes in the Statute of Limitations.-- Siebert v. Copp, 62 Mo. 182; Bigelow v. Bemis, 2 Allen, 496; Smith v. Morrison, 22 Pick. 430; Bingham v. Bigelow, 12 Metc. 268-273; Bradford v. Shine, 13 Fla. 393; Ang. on Lim. (6th ed.) 16, 17, and notes; Mayor v. Colgate, 12 N. Y. 152; Stephens v. St. Louis National Bank, 43 Mo. 389.

R. F. WINGATE, for defendant in error: The pecuniary demand of the State was extinguished and merged by the sale and forfeiture of the land involved, in October, 1869, and hence the State has no subsisting cause of action.--Acts 1865, pp. 161, 162; Blackw. Tax-titles, 459. The act of 1877 created a new obligation, imposed a new duty, and took away a valid defence, and hence is unconstitutional.--Const. Mo., art 2, sect. 15; Insurance Co. v. Flynn, 38 Mo. 483; Barton v. Watson, 49 Mo. 290; De Cordova v. Galveston, 4 Texas, 470. The action was barred by the statute.-- St. Louis v. Newman, 45 Mo. 138; Wag. Stats. 917, sects. 8, 10, 33.

BAKEWELL, J., delivered the opinion of the court.

This is an action to enforce the lien of the State on the realty described in the petition, for back taxes assessed for 1868. The petition alleges that defendant was the owner of the land described in the petition. The tax-bill filed with the petition is for taxes due in 1868. The petition seems to set forth all the facts required by sect. 6 of the act concerning delinquent taxes, passed April 12, 1877, on which the action is based.

In the court below defendant interposed a demurrer to the petition, which was sustained; and plaintiff declining further to plead there was final judgment, from which plaintiff appeals.

It is insisted that the pecuniary demand of the State was extinguished by the sale and forfeiture of the lands in October, 1869, set out in the petition, and hence that the State has no subsisting cause of action; that the act of Assembly which gives the right of action, so far as it authorizes recovery of the taxes, is in violation of the Constitution of the State, as being retrospective in its operation, and that the action is barred by the Statute of Limitations.

The act under which this land was forfeited to the State provides (Wag. Stats. 1870, p. 1205, sect. 116) that every tract not sold, for want of bidders, “shall be, and is hereby, declared forfeited to the State, and thenceforth all right, title, and interest of every person, of, in, and to said land, shall be considered as transferred to, and vested absolutely in, the State; and such real estate shall not afterwards, in any case, be subject to taxation or sale as other lands, except as hereinafter provided, until sold again to some person by the State, or redeemed.” The act of March 18, 1870 (Acts 1870 Adj. Sess., p. 114), provides (sects. 17, 18) for the assessment of lands theretofore forfeited to the State for the non-payment of taxes, and that the taxes, interest, and costs on any tract forfeited to the State for 1868, or any subsequent year, are a lien upon such tract, and provides for redeeming such lands. The act of March 20, 1872 (Wag. Stats. 1154), provides for the redemption of lands forfeited for taxes, and in 1875 a supplementary act was passed providing for the receipt and collection of taxes due upon forfeited lands.

By the terms of the law in force at the time of the alleged forfeiture, it was the duty of the collector to file with the clerk of the County Court a delinquent list of lands on which taxes were unpaid. On this list he applied for judgment at a stated term of the County Court, having first given notice by publication in a newspaper. If no owner appeared, the County Court rendered judgment against the lands for taxes, interest and costs, in the name of the State, and made an order that the lands be sold. A right of appeal existed to the Circuit Court by any one aggrieved. The clerk of the County Clerk then certified to the collector the list of lands against which judgment was rendered, and this certified list was the process on which the land was sold. On the day specified in the order of sale, provided the taxes and costs were not paid meanwhile, the collector exposed all the lands on the list for sale to any one who would pay the whole amount due for the least quantity of each tract offered for sale. The clerk of St. Louis County was not obliged to attend the sale, but after it was concluded he made out his sale-book, in which he marked each lot that remained unsold, “sold to the State.” The sale-book of property thus marked “sold to the State” was called the “forfeited list,” and was open to public inspection; and the land in it was subject to redemption by paying double the amount for which it was forfeited, and all taxes to the day of redemption, and fifteen per cent on each year's tax to the day of redemption; the amount of taxes to be fixed by the collector at an amount not exceeding the yearly amount of tax for which the land was last forfeited to the State. Wag. Stats. 1870, pp. 1200, 1206. At the expiration of two years, if the forfeited lands were unredeemed, they were sold by the collector on four weeks' notice, and a tax-deed executed by the county clerk to the purchaser.

Whether it would be competent for the Legislature to vest title of land in the government for the continued delinquency of the owner, by the formal acts of parties acting rather in a ministerial than a judicial capacity, and without inquisition, it is not necessary now to inquire. Forfeitures are not favored by the law, and there seems to be nothing in the provisions of the law under which this property was returned as delinquent which necessitates the interpretation that the title to the State vested, proprio vigore, as soon as the land was marked sold to the State upon the delinquent-list. The intention of the Legislature would seem to have been that the title to the land should not vest in the State until such time as this might become necessary to make title to a purchaser at the public sale of unredeemed lands provided for by the act. Such land might be redeemed at any time within two years, on making the prescribed payments; no provision is made for the execution of a deed to the owner on such redemption, nor is it anywhere provided that, on receiving the certificate of redemption, the title shall revest. Whilst the law says, as to lands forfeited for taxes, that “thenceforth all title shall be considered as transferred to, and vested absolutely in, the State,” the right to waive the forfeiture is manifestly reserved, and, at least until the date of the sale by the State, it cannot be considered that the title of the owner was divested proprio vigore of the act, even if it be held that this could be done at all. The common-law rule is, that in all statutes declaring forfeitures, it is intended upon inquisition of office and office found, this being a necessary incident, and therefore supplied by intendment. Acts vesting title in the king were always interpreted to mean that there must be an inquisition before the title vests. The king could not have his right but by solemn matter of record, it being a part of the liberties of England that the king cannot enter upon any man's possessions upon baresurmises, without the intervention of a jury. 2 Bla. Comm. 259. It has been held by learned judges in this country...