State v. Fullerton

• Decision Date: 23 February 1898
• Citation: 44 S.W. 741,143 Mo. 682
• Parties: STATE ex rel. LEHNER v. FULLERTON.
• Court: Missouri Supreme Court

44 S.W. 741

143 Mo. 682

STATE ex rel. LEHNER v. FULLERTON.

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

TAXATION — IRREGULARITIES IN PROCEEDINGS — BURDEN OF PROOF — STATUTE OF LIMITATIONS — OMITTED TAXES — EVIDENCE — SUBSEQUENT PURCHASER.

1. Under Rev. St. 1889, § 7682, which provides that the tax bill is prima facie evidence that the amount claimed is just and correct, it devolves upon the defendant to show any irregularity in the proceedings.

2. Statements by the assessor to witness, as to defendant's assessment, are hearsay and inadmissible.

3. Rev. St. 1889, § 7692, which provides that a suit for taxes may be brought any time within five years after the tax becomes delinquent, does not apply to omitted taxes, until after the tax levied under the omitted assessment becomes delinquent.

4. Rev. St. 1889, § 7562, which gives power to assess taxes for years in which the property

escaped taxation, makes no exception where the property has changed hands in the meantime, the purchaser being presumed to know that it may thereafter be charged with previously omitted taxes.

Appeal from Cape Girardeau court of common pleas; Alexander Ross, Judge.

Suit by the state of Missouri, on the relation of Peter Lehner, collector of taxes for Cape Girardeau county, against James M. Fullerton. From a judgment for plaintiff, defendant appeals. Affirmed.

Robt. L. Wilson, for appellant. B. F. Davis, for respondent.

WILLIAMS, J.

This is a suit to enforce a lien for taxes for the years 1884 to 1889, inclusive, upon certain lots in the city of Cape Girardeau, now belonging to defendant. These lots were not assessed at the regular time for making assessments for those years, but were erroneously omitted from the assessor's books. The defendant bought them at a sale, under a deed of trust, in the year 1889. The trustee, at defendant's request, inquired of the collector whether there were any delinquent taxes upon the property, and was informed that there were none. He repeated the collector's statement to defendant before the latter purchased at the trustee's sale. The taxes sued for had not then been levied, as the property had been omitted from the assessor's books as above stated, and the information given by the collector was correct. The lots, however, after the sale to defendant, were, in the year 1890, assessed for the years previously omitted, in accordance with the provisions of section 7562 of the statutes, and the taxes sued for were levied under said assessment. Judgment was rendered in the lower court for plaintiff, and defendant has brought the case here.

1. It is contended that the assessor failed to call upon defendant for a list of his property, in accordance with sections 7531 and 7532 of the Statutes of 1889, before assessing the lots for the omitted years, under section 7562. Plaintiff insists that the two sections first mentioned have no application to an assessment to cover previous omissions. He also urges, and in this we think he is correct, that this record does not demand, or, in fact, authorize, the determination of that question. The tax bill is, by statute, made "prima facie evidence that the amount claimed in said suit is just and correct." 2 Rev. St. 1889, § 7682; State v. Schooley, 84 Mo. 447. No objection is made that said tax bill is not in proper form. It was not necessary then for plaintiff to go further, and show that all steps taken by the assessor were regular. The presumption, in the absence of evidence to the contrary, is that the officer did his duty. State v. Wayne County Court, 98 Mo. 362, 11 S. W. 758. It devolved upon defendant to show any omissions in that behalf after plaintiff had presented proof which, under the statute, made a prima facie case. The only testimony offered by defendant upon this point was that the assessor had said to a witness that he did not call upon defendant for a list. This clearly was mere hearsay, and properly excluded.

2. The action is not barred by the statute of limitations. The assessment was made...