State v. Nathan

• Decision Date: 05 March 1921
• Docket Number: No. 21804.,21804.
• Parties: STATE ex rel. HOCKMAN et al. v. NATHAN et al.
• Court: Missouri Supreme Court

229 S.W. 176

STATE ex rel. HOCKMAN et al. v. NATHAN et al.

No. 21804.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Appeal from Circuit Court, Lawrence County; John C. Turk, Special Judge.

Suit by the State, on the relation of H. T. Hickman and others, against Arthur S. Nathan and others. From a judgment setting aside a tax sale, the relators appeal. Affirmed.

H. H. Bloss, of Aurora, for appellants. I. V. McPherson and James A. Potter, both of Aurora, for respondents.

GRAVES, J.

This is a tax proceeding coming from Lawrence county. The collector of that county had sued for the delinquent taxes on the land in suit. There was a dispute as to whether the defendants Arthur S. Nathan and Sidney Nathan were sued in their individual or in some representative capacity. There was an additional abstract filed by respondent upon this matter, and but so far as it related to this subject it was withdrawn. In the view we have of the case it is not very material. Suffice it to say that the tax proceeding went to judgment, execution, and sale. The sale was had January 14, 1918, and the prosecuting attorney, n. McNatt, bought in the 40-acre tract for $66.72, and had the deed made to one John Bosley. This land was some 14 miles from Mt. Vernon, the county seat, and about two miles from Aurora, in the same county. The train was due from Aurora the morning of the sale shortly before 10 o'clock. The sale was made about 9:30, before this train arrived or was due to arrive. The train was a little late that morning. The land was sold at that hour at the suggestion and request of McNatt, who told the sheriff that he would see that it brought taxes and cost. It was shown that this was an unusual hour for tax sales. They were usually had in the afternoon. A heavy snowstorm had made travel over the public roads impossible, so that bidders or prospective bidders from the vicinity of the land could only come by rail, and bidders did come on the train from Aurora, within an hour after the sale.

The defendants promptly filed a motion to quash and set aside this sale and the deed made thereunder. This motion fully covered all the facts above stated, and more. It charged that defendants had been sued in their representative capacity, and were Illinois executors and trustees under their father's will. Such a motion took the case to the equity side of the court. Upon the hearing the court found the land to be worth $800. McNatt says that he sold his bid to Bosley for $400, and says that Bosley was familiar with the circumstances of the sale, and took the deed in his name for the recited consideration of $66.72, the bid of McNatt. Bosley was a bidder from Aurora on that morning's train.

By the defendants it was shown that the land cost Samuel Nathan, the father of defendants, $1,600 in 1890, and that it was worth at least $1,200 on day of sale. The will of Samuel Nathan was in evidence on the motion, and defendants are shown therein to be executors of the will and trustees for their mother. In his findings of fact the learned chancellor nisi says that he sustained the motion because the tax suit was improperly brought against the defendants in their representative capacity rather than as individuals. Under the will they were residuary legatees upon the death of the mother.

There is also evidence from one witness that prior to the sale day he went to the sheriff's office for a list of the tax lands to be sold, and that afterward he received a list, unsigned or otherwise designated (but coming in the sheriff's envelope), and this tract of land was not thereon. It further appears that the snowstorm was so great that court work was suspended for several days.

The judgment upon the motion set aside the sale and canceled the deed to Bosley upon the condition that defendants pay into court for the said Bosley the sum of $75 to reimburse him for the money which he was really out in the transaction. Both Bosley and plaintiff appealed.

I. Appellants claim that the suit was not against defendants in their representative capacity, but respondents in their additional record urged, on pages 8 and 9 thereof, otherwise. Respondents said in such additional abstract, on page 8, that the tax judgment was against them in their representative capacity, and, on page 9, that the petition in the tax suit charged them in their representative capacity. These parts of the additional abstract were objected to by appellant, and he asked that the record be certified up to this court. Thereupon counsel for respondents withdrew that portion of his additional...