The State at Relation and to Use of McKinney v. Davidson

• Decision Date: 30 July 1926
• Docket Number: 25540
• Parties: The State at Relation and to Use of J. L. McKinney, Collector of Revenue of Texas County, v. Jacob A. Davidson, Rosa L. Davidson and Texas County; W. R. Brown, Appellant
• Court: Missouri Supreme Court

286 S.W. 355

315 Mo. 549

The State at Relation and to Use of J. L. McKinney, Collector of Revenue of Texas County, v. Jacob A. Davidson, Rosa L. Davidson and Texas County; W. R. Brown, Appellant

No. 25540

Supreme Court of Missouri

July 30, 1926

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

Affirmed.

Lamar Evans & Lamar for appellant.

(1) Texas County had no interest in the land. It was exempt from taxation. Secs. 12753, 12752, R. S. 1919; State ex rel v. Casey, 210 Mo. 235; Fitterer v. Crawford, 157 Mo. 51. (2) The question of exemption from taxation was a matter of defense that should have been raised at the trial and the judgment cannot be attacked at a subsequent term by a motion to quash the sale. State ex rel. Ozark Co. v. Tate, 109 Mo. 268; Heffernan v. Ragsdale, 199 Mo. 384; Curtiss v. Bell, 131 Mo.App. 245. (3) The objection that the sureties on the bond were not served with process, was not raised in the motion to quash, hence could not properly be considered by the court. Sec. 1267, R. S. 1919; Stone v. Wolfskill Bros., 59 Mo.App. 441. Even if the sureties on said bond were proper parties, they were not necessary parties and, not being made parties, would not be affected by the sale. Gitchell v. Kreidler, 84 Mo. 472; Blevins v. Smith, 104 Mo. 588; Milner v. Shipley, 94 Mo. 106; Allen v. McCabe, 93 Mo. 144. (4) The objection that W. R. Brown, the purchaser, made the abstract of title for the tax suit was not raised in the motion to quash, hence not properly before the court. Sec. 1267, R. S. 1919. Even if this question had been raised by the motion to quash, appellant was not precluded from purchasing at this sale. Walker v. Mills, 210 Mo. 689; Walcott v. Hand, 122 Mo. 628; Turner v. Gregory, 151 Mo. 106. (5) Inadequacy of consideration alone is not sufficient ground for quashing an execution sale. Hammond v. Scott, 12 Mo. 8; Meir v. Zelle, 31 Mo. 331; Phillips v. Stewart, 59 Mo. 491; Landrum v. Bank, 63 Mo. 48; Gordon v. O'Neil, 96 Mo. 355; Walters v. Herman, 99 Mo. 532; Briant v. Jackson, 99 Mo. 598; Martin v. Castle, 193 Mo. 183; Welch v. Mann, 193 Mo. 304; Derby v. Donahoe, 208 Mo. 684; Walker v. Mills, 210 Mo. 684; Dougherty v. Gangloff, 239 Mo. 649; Mangold v. Bacon, 237 Mo. 520. The consideration in the case at bar was not so inadequate as to "shock the moral sense and outrage the conscience." Hammond v. Scott, 12 Mo. 8; Meir v. Zelle, 31 Mo. 331; Martin v. Castle, 193 Mo. 183; Dougherty v. Gangloff, 239 Mo. 649.

D. E. Moberly for respondent.

(1) All county interest in land in this State is absolutely untaxable. Mo. Constitution, art. 10, sec. 6. A suit for delinquent taxes conveys only the interests of persons against whom a valid judgment was obtained. In this case Texas County owned a real, tangible and untaxable interest in this land, and all tax judgments, executions and sales thereunder are void on their face, so far as Texas County is concerned. R. S. 1919, sec. 1248; Watt v. Donnelly, 80 Mo. 195. (2) The question of sureties on the school fund bond not being served with process should be considered for the purpose of determining why the inadequate consideration for which this land was sold was the best bid that could be obtained under the sale which the circuit court set aside. They were proper parties, being parties of record, who have an interest in the land described in the tax sale and in the school fund mortgage. R. S. 1919, secs. 12945, 12946, 12948, 11167, 11173, 11174. (3) While the fact that the abstracter was the purchaser at the tax sale does not alone constitute grounds for setting aside the tax sale, taken together with a disputed title due to the mortgage of the county, and known to the abstracter, and communicated by him to the bidders, it is good reason to believe that the land was sold at so grossly an inadequate price because of his action to discourage a fair price being paid. Hook v. Turner, 22 Mo. 333; Wootson v. Hinkle, 20 Mo. 290; Mangold v. Bacon, 237 Mo. 520; Conway v. Nolte, 11 Mo. 17; Cole County v. Madden, 91 Mo. 585; Rorer on Jud. Sales (2 Ed.) secs. 549, 1095; Shaw v. Potter, 50 Mo. 281; State ex rel. v. Moore, 72 Mo. 285. (4) Inadequacy, where the inadequacy amounts to gross inadequacy, is sufficient to justify the courts in quashing an execution sale. Shoe Co. v. Wyble, 261 Mo. 675; Mangold v. Bacon, 237 Mo. 520; Davis v. McCann, 143 Mo. 177; Hardware Co. v. Building Co., 132 Mo. 442; Conway v. Nolte, 11 Mo. 74; Shaw v. Potter, 50 Mo. 281; Cole County v. Madden, 91 Mo. 585; Rorer on Jud. Sales (2 Ed.) secs. 549, 1095; Guinn v. Donnell, 201 Mo. 202; Railway v. Brown, 43 Mo. 294; Holden v. Vaughn, 64 Mo. 588; Koop v. Kelsey, 121 Mo. 642. (a) In the case at bar the price paid for the land was grossly inadequate, in fact was only one-twentieth of the actual agreed valuation of the land. Davis v. McCann, 143 Mo. 177; Hardware Co. v. Building Co., 132 Mo. 442; Cole County v. Madden, 91 Mo. 585. (b) Where the price paid is grossly inadequate, the court will require that there be a strict regularity in the proceedings; where the plaintiff buys the land at the sale he becomes a purchaser with notice of the infirmities of his title, and the abstracter is in this case in the same position as the plaintiff. Nelson v. Brown, 23 Mo. 21; Laws 1921, p. 673. (c) The sheriff in selling the property was the agent of both the plaintiffs and defendants, owing a like duty to each, and bound to protect the interest of all parties concerned. It was his duty to see that the property was not sacrificed and to that end he could have returned the execution "no sale for want of bidders" and would have been protected in doing so, and such a return in this case would have been a commendable exercise of the sheriff's discretionary power. Hardware Co. v. Building Co., 132 Mo. 442; Davis v. McCann, 143 Mo. 178; Conway v. Nolte, 11 Mo. 74; Shaw v. Potter, 50 Mo. 281; Cole Co. v. Madden, 91 Mo. 585; State ex rel. v. Moore, 72 Mo. 285. (d) The failure of the county court to have a representative to attend the sale of this land to protect its interest is good ground for quashing the sale. Cole County v. Madden, 91 Mo. 585; Rorer on Jud. Sales (2 Ed.) secs. 549, 566, 1086, 1095; American Wine Co. v. Scholer, 85 Mo. 496; McKee v. Logan, 82 Mo. 524; Parker v. Railroad, 44 Mo. 415; Nelson v. Brown, 23 Mo. 13; The State ex rel. v. Moore, 72 Mo. 285. (e) To permit the sale to stand under the circumstances would be little better than taking the property of children of Texas County and making a gift of it to the purchaser of the land at this sale, which the law does not permit. Davis v. McCann, 143 Mo. 177. (f) The county by law is but the trustee of the school funds for the benefit and education of minors and the county court are but its agents in the management and preservation of said funds for such uses and beneficiaries. Cole County v. Madden, 91 Mo. 585; Conway v. Nolte, 11 Mo. 17; Shaw v. Potter, 50 Mo. 281.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

W. R. Brown, the appellant, was the purchaser of two hundred 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, borrowed $ 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 eight 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 $ 2500; (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...