State v. Davidson

Citation286 S.W. 355
Decision Date30 July 1926
Docket NumberNo. 25540.,25540.
PartiesSTATE ex rel. McKINNEY, Revenue Collector, v. DAVIDSON et al. Appeal of BROWN.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Texas County; W. E. Barton, Judge.

Proceeding by the State, on the relation and to the use of J. L. McKinney, Collector of Revenue of Texas County, against Jacob A. Davidson and others, to set aside tax sale. From an order setting aside sale, W R. Brown, purchaser, appeals. Order affirmed.

Lamar, Evans & Lamar, of Houston, for appellant."

D. E. Moberly, of Houston, for respondent.

LINDSAY, C. W. R.

Brown, the appellant, was the purchaser of 200 acres of land in Texas county at a sale under execution for taxes, and his appeal is taken from the action of the circuit court in setting aside the sale upon the motion of Texas county. Evidence for and against the motion was heard.

The transactions leading up to the sale were as follows: On April 5, 1921, Jacob A. Davidson and Rosa L. Davidson, husband and wife, owners of the land in question, bor.. rowed $1,250 of the capital school fund of Texas county, and executed their bond in that sum and also a mortgage on said land. The bond was also executed by certain other individuals as sureties. The bond was due in one year after its date, and no payments were made upon it, and the taxes accruing upon the land for the years 1920 and 1921 were not paid.

Suit for the unpaid taxes for those years was brought, and judgment obtained for $48.-45, the amount of the taxes for said years. The recitals in the abstract of the record show that in the petition in the tax suit, Jacob A. Davidson, Rosa L. Davidson, James H. Covert, trustee, Jeff Davidson, and Texas county were made defendants. There was personal service upon the individual defendants, and service upon the county through service upon the county clerk.

There is no serious claim on the part of the county of defect of form of the petition, the judgment rendered, the execution thereon, or the notice of sale. That all these properly described the land, set forth taxes sued for, and were in the usual form is conceded, and that the sale was had at the usual time and place of making such sales, was not in dispute. The land was sold to appellant upon his bid of $25 for the whole tract of 200 acres, which was the only bid. It first had been offered for sale in 40-acre tracts, and no bids had been received. A deed was executed to appellant by the sheriff and acknowledged in open court, but delivery of the deed was withheld by order of the court, there having been filed 8 days after the sale, and at the same term, the motion of Texas county asking that the sale be set aside on the grounds: (1) That the consideration was inadequate, the bid being $25, and the value of the land $2,500; (2) that the county court had failed and neglected to appoint a representative to attend the sale, and protect the county's interest therein; and (3) that the interest of the county in said land was untaxable, and therefore the county could not be joined as a party defendant. It thus appears that the motion raised no issue of fraud or collusion on the part of the purchaser, or of anyone.

On behalf of the county, it is urged that the county had an untaxable interest in the land, and that the tax judgment, execution, and sale were void so far as Texas county was concerned. As to this, it must be said that the land was properly taxed upon its assessed value, and as the property of said Davidson, the actual owner and owner of record, and the fact that the mortgage was to the county could not in any way withdraw the land from taxation, either in whole or to the extent of the amount of the mortgage debt. Nor could the fact that the bond secured by the mortgage was not taxable have any such effect.

The county was the mortgagee, and the suit, in accordance with the provisions of section 12945, was required to be brought "against the owner of the property." Under that provision it has been held that the mortgagee, as well as the trustee, should be made a party to the suit. Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 472; Williams v. Hudson, 93 Mo. 524, 6 S. W. 261. Under the holdings in those cases, the mortgagee, not made a party to such a suit, has certain rights of redemption, but such a sale is not void.

It is urged also on behalf of the county, and as constituting a defect in the proceedings in the tax suit, that the sureties on the bond given by the mortgagor were not made parties to the suit. Counsel contends, although it is not a ground of the motion, that the sureties have an interest in the land, and in support of that contention, citation is made to sections 11167, 11173, 11174, and also sections 12945, 12946, 12948, R. S. 1919. The sureties had no interest of ownership in the land. Their obligation was a contractual one, to pay a debt, if the principal maker failed to do so. In the terms of section 11173, they were "personal securities," and no reason is seen sustaining the contention, nor can we find that the sections mentioned are authority for holding that the sureties had an interest in the land which made them necessary parties to the tax suit.

Another matter urged, but not included in the motion, is that the purchaser was shown to be the abstracter, who had prepared for the collector the abstract of title to this land and abstracts of other lands also in suit for taxes. In Walker v. Mills, 210 Mo. 684, loc. cit. 690, 109 S. W. 44, 45, wherein the purchaser of land at tax sale was the attorney who had brought and looked after the suit for the collector, it was said:

"If the collector can purchase at such sale there is no good reason to assign why his attorney could not likewise purchase. There was no issue of fraud, collusion, or anything of that character charged in the answer. So that upon the single question of the right of the plaintiff to purchase at the tax sale, under our cases, we must hold that he had such right and this contention is ruled against defendant."

The fee of the abstracter was taxable as costs. Laws of Missouri 1921, p. 673. That relation alone did not disqualify him as a bidder. The county court had no representative, present, or appointed to attend the sale, or to look after the interests of the county. There is no dispute upon that point. The county clerk testified:

"The county court knew that the county was sued in this tax suit. I filed the papers served on me and brought them up before the court. The matter had been discussed between me and the county Court prior to the sale, but the court made no arrangement with me nor anyone else, so far as I know, to have a representative at the sale."

The presiding judge of the county court testified:

"I have had no discussion at any meeting of the county court as to whether or not the court should appear and protect the county's interest at a tax sale against school lands subject to school fund mortgages. We never have discussed the matter, only looking at the tax suits, we checked over them, but there was never any action taken. We appointed no representative to appear at any tax sales to protect the county's interests. We have had lands that were subject to school fund mortgages sold at tax sales."

The remaining question raised is that of inadequacy of price, which is to be taken in consideration of the testimony foregoing, and the other circumstances shown. The land was described as rough ridge land, in the extreme north part of Texas county, near the Piney river, distant about 40 miles from the nearest railroad, and with improvements which did not "amount to much." The record recites that it was admitted in open court by the respective counsel "that the valuation of the land in question is $500."

This is not an appeal from a decree rendered in a suit in equity, but is one from an order setting aside a sale upon a motion filed and determined at the term in which the sale was made. Under the holding in Holden v. Vaughan, 64 Mo. 588, the proceeding was one on the law side of the court. See, also, Hurley v. Universal Clay Co., 278 Mo. 408, 416, 213 S. W. 28; State ex rel. Hartley v. Innes, 137 Mo. App. loc. cit. 423, 118 S. W. 1168. We have set out heretofore matters about which there is no conflict in the evidence. The trial court made no finding of facts, and no declarations of law were asked by either party.

The appellant did not offer himself as a witness. The evidence consisted of the matters of record, and documentary evidence above mentioned, and the testimony of the County clerk, the presiding judge of the county court, and the sheriff. The trial court had before it, by the documentary evidence, the fact that the land sold was subject to a mortgage to the county for $1,250, given as security for a loan of moneys belonging to the school fund, and the fact that the county, as mortgagee, had been summoned in the suit. The only evidence given as to the information had by prospective bidders or others attending the sale concerning the interest of the county in the land, or as to whether knowledge of that interest affected bidding, was the testimony given by the sheriff, called as a Witness by appellant. The sheriff testified:

"I don't know what was generally understood as to there being a school-fund mortgage on this land at the time of the sale, nor whether that reduced the bids on the land. The only way I know they would know it [was] when I read the notice and read the defendants in the suit."

There are many cases dealing with the right and duty of courts to set aside a sale, based upon grounds of inadequacy of price, and upon other circumstances preceding or immediately attending the sale, and many such cases are cited in the briefs. The contention made by counsel for the county is that, where inadequacy in the consideration amounts to gross inadequacy, it is alone sufficient to justify the court in quashing an...

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