State ex rel. Rosenblatt v. Sargent

• Decision Date: 23 May 1882
• Citation: 12 Mo.App. 228
• Parties: STATE OF MISSOURI, EX REL. M. A. ROSENBLATT, Respondent, v. H. W. SARGENT ET AL., Appellants.
• Court: Missouri Court of Appeals

12 Mo.App. 228

STATE OF MISSOURI, EX REL. M. A. ROSENBLATT, Respondent,

v.H. W. SARGENT ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 23, 1882.

1. A sale under a judgment in a proceeding to collect back taxes is a judicial sale.

2. The policy of the law is opposed to setting aside judicial sales of real estate.

3. The purchaser at a tax-sale need look only to the judgment, execution, levy, and sheriff's deed.

4. Inadequacy of consideration is not sufficient ground for setting aside such a sale, where the owner was a party to, and had legal notice of, the proceeding.

5. An execution which directs a sale of the real estate, or so much thereof as will satisfy the judgment, is in accordance with the statute.

6. A tax-sale made in accordance with the judgment and execution will not be set aside because the sheriff, in the absence of the defendants and without objection, sells lot after lot until all are sold, though the first three lots sold for enough to pay the taxes upon the entire tract.

7. At a tax-sale under a judgment against several lots against each of which its own taxes are a separate lien, the collector is not bound to direct the sheriff to stop the sale as soon as he has in his hands enough money to pay all the taxes due upon the series of lots.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

BROADHEAD, SLAYBACK & HAEUSSLER, for the appellants.

DONOVAN & CONROY, M. B. JONAS, and KING, CHAPIN & KING, for the respondent.

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

This was a motion to set aside a sale made under execution issued upon a judgment in the above entitled cause, for back taxes. The motion, on hearing, was overruled.

The petition in the original proceeding was filed on September 3, 1879. Eleven defendants were charged as owners, of whom two are married women, whose husbands are made defendants. The petition is in the form usual in such cases, and seems to be sufficient. The property is said to be in the city of St. Louis, and is further described as follows:--

“No. 1. Lots 4, 5, 6, 7, in city block of Risley Addition, fronting twenty feet on Second Street, by one hundred and eight and five-twelfths feet deep. No. 2, lot 8, in same block, fronting twenty and seven-twelfths feet on Second Street, by one hundred and eight and five-twelfths feet deep. No. 3, lots 9, 10, 11, 12, in same block, fronting nineteen feet on Risley Street, by a depth of eighty-five and three-twelfths feet. No. 4, lot 13, and the south part of lot 14, in same block, fronting twenty-six and six-twelfths feet on Risley Street, by eighty-five and three-twelfths feet deep.”

The claim is for back taxes of 1877, and is set out as follows: “In the aggregate, upon each of said lots or tracts described herein, as follows: Upon said real estate numbered 1, $302.40,--that is to say, $25 upon each of lots numbered 4, 5, and 6, and $226.80 upon lot numbered 6; and upon said real estate numbered 2, $26.04; and upon said real estate numbered 3, $49.28,--that is to say, $12.32 upon each of said lots; and upon said real estate numbered 4, $17.08.”

Three of the defendants were personally served. One was served by copy; and as to the remaining defendants who were not found, there was an order of publication, which was duly complied with. This order and advertisement described the property as it was described in the petition. All the defendants made default; and, at the October term, 1880, there was judgment in favor of the plaintiff.

This form of the decree is as follows: The court finds that there is due upon the real estate (describing it as described in the petition) state, school, and city taxes for 1877; “and that the amount of said taxes and interest is as follows, to wit: On each of said lots numbered 4 and 5, in paragraph numbered one herein, the sum of $33.75.” There is, then, a separate finding as to taxes against each lot in each paragraph, and that defendants are the owners thereof; and then, consideratum est, etc., “that the sum of $33.76 be levied out of each of said lots 4 and 5, as described in paragraph number one herein, being the amount of said back taxes, and interest thereon from January 1, 1878, at one per centum per month;” and so on, a separate judgment being rendered against each lot in each paragraph. The decree then declares the judgment a first lien in favor of the state upon said real estate, and orders that the lien be enforced, and that said real estate, or so much thereof as may be necessary to satisfy said judgment, interest, and costs, be sold according to the law regulating the sale of real estate under execution, and “that the costs be so distributed against each of said lots in proportion as the same bear to the whole amount of costs charged in this suit, and that a special fieri facias issue hereon.”

Execution was issued on February 10, 1881, in accordance with the judgment. The property was duly advertised for sale in accordance with the description in the petition, decree, and execution, and was sold on March 15, 1881, to Zachariah T. Yarnall. The property was sold in separate lots. Lot 4, for $170; lot 5, $175; lot 6, $660; lot 7, $220; lot 8, $90; lot 9, $175, lot 10, $115; lot 11, $110; lot 12, $105; lot 13, and south part of lot 14, $180,-- making a total of $2,000. The total amount for which judgment had been rendered being $529.01.

This execution was returnable to the April term; and, on the fourth day of June of that term, the motion was filed to set aside the sale, by defendants Gazzam, Cochrane, and Phœbe Hunt, together with her husband, and Horner, her trustee, and by Muldoon and Sharpe, who were not defendants, but who claimed to be the parties in possession of the property.

The grounds alleged in the motion are, that judgment and execution are irregular, illegal, and void; that the sheriff sold more property than he advertised, and more than the special judgment authorized, and that he sold without legal notice; that no demand of payment was made before the levy; that the property was sacrificed for $2,000, whereas it was worth $40,000; and that the whole property constituted one common improvement, to wit, a packing and slaughter-house; and that defendants offer to pay to the purchaser his bid, and all interest and charges.

On the hearing of the motion no testimony was offered on the part of the purchaser. The only witness examined in support of the motion was Mr. Haeussler, a member of the firm of attorneys whose name is signed to the motion. He testified that the property was worth, in cash, $15,000, at the date of the sale; that he himself would have given $10,000 for a quit-claim deed to it, as a speculation, and taken his chances as to the title; and that he would have given the total amount of the judgment for any one of the lots. On cross-examination, Mr. Haeussler said in substance as follows; we abbreviate to save space and time: The title to the property has been in litigation for many years. There were three suits and three claimants. I understand that these suits have been settled. I represent Muldoon and Sharpe, who have been in possession, packing pork on the property for six years, during two years of which time the property was in the hands of a receiver of the United States Circuit Court. Afterwards Muldoon and Sharpe paid rent to Gazzam and Cochrane, as they did before the receiver's time. Defendants Gazzam and Cochrane, Horner and the Hunts, are the landlords of Muldoon and Sharpe, and are represented in this application by their own counsel. I offered Yarnall $2,500 for the property for myself, Muldoon, and Sharpe, and declined to offer more. The title is badly mixed. It is such that a speculative Dutchman would not give more than $2,500 for, in its present condition. I am familiar with the title; believe I would have a good title if I had defendant's title. I would have been glad to get their title for $10,000. The back taxes on the property, besides those mentioned in the execution, amount to $2,500, for which suits are being brought.

An affidavit of Muldoon was offered, with an accompanying diagram. This affidavit is to the effect that the ten lots form a common improvement, used as a pork-packing house and hog run, the northern twelve feet being vacant; and that the improvements are two stories high, and worth $10,000. No one demanded the taxes of affiant or his firm. A lease from Mrs. Hunt's trustee to Muldoon and Sharpe for one year from July, 1876, renewed for one year for the premises in question, was also put in evidence, and also a quit-claim deed from Mrs. Hunt, her husband, and her trustee, dated June, 1877, to Gazzam and Cochrane, of Pittsburg, Pennsylvania, for the premises in question. There was no other evidence except a plat of the land.

The sale was a judicial sale, and entitled to all the presumptions attaching to such sales. Wellshear v. Kelly, 69 Mo. 343. There was no request to subdivide. Nor does it appear that further subdivision was practicable. The neglect of the sheriff to sell the land by its smallest subdivisions would not invalidate the sale. It is unnecessary to encumber this opinion by repeating at length what has so recently been said by this court as to such sales. Sheehan v. Stackhouse, 10 Mo. App. 469; Brown v. Walker, 11 Mo. App. 226; Howard v. Stevenson, 11 Mo. App. 410. We may remark, however, in passing, that counsel for appellant has entirely misapprehended the case of Brown v. Walker. It is not held or said in that case, as counsel suggests in his brief, that on a judgment against two vacant lots, each of which is liable for only a part of the tax, both may be legally sold together: a single judgment against both the lots is, in that opinion, distinctly declared to be erroneous. It is held only, that the objection does not go to the jurisdiction, and that the fact cannot be shown in a proceeding in ejectment, by oral evidence, for the purpose of impeaching the judgment in the back-tax...