State ex rel. Wright v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1884
• Citation: 82 Mo. 683
• Court: Missouri Supreme Court
• Parties: THE STATE ex rel. WRIGHT, Collector, v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

82 Mo. 683

THE STATE ex rel. WRIGHT, Collector,

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Scott Circuit Court.--HON. J. D. FOSTER, Judge.

REVERSED.

D. L. Hawkins with Bennett Pike for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action. 2 Wag. Stat., p. 1214 c; Wellshear v. Kelley, 69 Mo. 343. (2) The assessor of Scott county had no authority or power, at the time of the alleged assessment of said lands, to-wit: for the years 1872, 1873, 1874, 1875 and 1876, to assess the same, and the assessment is, therefore, wholly void. Allen v. Armstrong, 16 Ia. 508; Abbott v. Lindenbower, 42 Mo. 162. (3) The evidence conclusively shows that the land was not assessed to the owner, or to any one who ever had been the owner, and the assessment is, therefore, utterly void. Cases cited, supra.

Arnold & Hunter for respondent.

RAY, J.

This suit was instituted by the collector to recover taxes alleged to be due and unpaid upon lands in Scott county, described in the petition, for the years 1872, 1873, 1874, 1875 and 1876, under the delinquent tax law of 1877. The petition states substantially that under and by virtue of the laws of Missouri the officers and agents of Scott county and the State, having legal authority to do so, laid and assessed taxes upon the real estate described, stating the amount of taxes assessed against each tract, the different funds for which taxes were levied, and that the taxes amounted in the aggregate to $1,611.29, for which judgment was asked. Defendant's answer is a general denial.

Before the trial of the cause, plaintiff, by leave of the court, amended the petition by alleging “that immediately after the taking effect of the back tax law of 1877, the collector of the county of Scott returned to the clerk of the county court of said county as delinquent the lands described in the petition, and thereupon, within sixty days thereafter said clerk made out the same into a ‘back tax book’ and delivered it to said collector, and that all of said lands remained unredeemed on the 1st day of January, 1879.” On the trial plaintiff obtained judgment, from which defendant has appealed. Appellant's counsel are in error with respect to the allegations in the petition, occasioned by their having overlooked the amendment to the petition made at the April term, 1882, above noticed.

The testimony introduced by the plaintiff shows that the lands were assessed by the county assessor for the years 1872 to 1876, inclusive, to one Blakely Wilson. Wilson is not shown to have ever had any title or claim, while the evidence for the defense, consisting of a patent from the United States to defendant, shows that the title to the lands remained in the United States until the 23rd of January, 1877, the date of the patent. Prior to that time, the defendant was the equitable owner of the lands, and, if the lands were subject to taxation before 1877, a question we...