The State ex rel. Ward v. Linney

• Decision Date: 12 December 1905
• Citation: 90 S.W. 844,191 Mo. 49
• Parties: THE STATE ex rel. WARD v. LINNEY, Appellant
• Court: Missouri Supreme Court

90 S.W. 844

191 Mo. 49

THE STATE ex rel. WARD v. LINNEY, Appellant

Supreme Court of Missouri, Division Two

December 12, 1905

Appeal from Grundy Circuit Court. -- Hon. P. C. Stepp, Judge.

Reversed.

S. S Kelso and W. B. Linney for appellant.

The court erred in admitting extrinsic evidence to cure defective description in the assessment and back taxbill. An accurate description of land is necessary to a valid assessment of a tax thereon. State ex rel. v. Burrough, 174 Mo. 700; State ex rel. v. Railroad, 114 Mo. 1; State ex rel. v. Mission Free School, 162 Mo. 332; State ex rel. v. Thompson, 149 Mo. 441; State ex rel. v Sanford, 127 Mo. 372; Western v. Flannigan, 120 Mo. 61; City of Jefferson v. Whipple, 71 Mo. 520; Abbott v. Lindenbower, 42 Mo. 162; sec. 7555, R. S. 1899.

H. J Bain for respondent.

(1) There is no technical rule as to the description of land; as land cannot pass bodily, it is only necessary that it be sufficiently described to identify it. If the instrument itself does not identify it, it is sufficient if it refers to other instruments, documents, or records which do describe it. Nelson v. Broadhack, 44 Mo. 603; Brown v. Walker, 11 Mo.App. 234; Adkins v. Moran, 67 Mo. 100; McPike v. Allman, 53 Mo. 551. (2) The law does not require that assessors shall describe in their assessment blanks miscellaneous tracts by meandering lines or their metes and bounds. The general revenue law only provides that these tracts shall be described briefly and shall indicate the quantity and location thereof. Sec. 9168, R. S. 1899. And the statute provides that in all records, certificates and other papers used in making out taxes, letters or figures may be used to denote parts of sections or other subdivisions of real property, and when stated in figures, letters or characters shall be deemed and held to be fully and fairly stated as though the same had been written out in full. Sec. 9328, R. S. 1899. And the enforcement and collection of taxes in cities of the third class shall be made in the same manner as is provided by law in case of State and county taxes. Sec. 5812, R. S. 1899. (3) This tract of land was assessed as the James Merritt tract in section 17, township 61 of range 24 and was described in full in the petition. But even if there were any uncertainty in the description as to the quantity or location of this James Merritt tract, the public records of the county were easily accessible to ascertain or make certain everything concerning it. Upon the principle, that that is certain which can be made certain, the court committed no error in holding that the land was sufficiently described and liable for the tax. Nelson v. Broadhack, 44 Mo. 596; Brown v. Walker, 11 Mo.App. 226; Hammon v. Johnson, 93 Mo.App. 214. (4) The purpose of the tax-bill is to show the fund to which the tax belongs. In a suit to collect back taxes it is the petition and not the tax bill which must set out the cause of action. State ex rel. v. Rau, 93 Mo. 126; Vaughan v. Daniels, 98 Mo. 230; O'Day v. McDaniel, 181 Mo. 535. The numbers or description of the land are not specifically called for or required by the statutes to be set out in the tax-bill. Vaughan v. Daniels, 98 Mo. 233. The assessment is the basis of the tax. But if a defect in the assessment is relied on to defeat the tax, it must relate to the records of the assessor and not to the tax-bill. In this State the assessment of property is made by the assessor by calling on the tax-payer and obtaining from him a list of his taxable property and its value. Rich Hill Mining Co. v. Neptune, 19 Mo.App. 438; State ex rel. v. Spencer, 114 Mo. 574. (5) Where land against which the lien for taxes is sought to be enforced is specifically described in the petition and tax-bill, and the tax-bill and other evidence identify it so there can be no mistake, the judgment of the court finding the tax to be due on such land, will be affirmed. State ex rel. v. Cowgill, 81 Mo. 381; O'Day v. McDaniel, 181 Mo. 535.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

This is an appeal from a judgment of the circuit court of Grundy county, enforcing the lien of the city for taxes due and owing on certain real estate belonging to the appellant in the city of Trenton, in Grundy county. The taxes were for the years 1898 and 1899. The petition describes the land as lying and situated in the city of Trenton, county of Grundy, State of Missouri, to-wit: "a part of the southwest quarter of the southwest quarter of section 17, township 61, range 24 being within the following metes and bounds, to-wit: commencing 22 rods south of the northwest corner of the southwest quarter of the southwest quarter of said section, running thence east 9 rods, thence south 13 rods, 16 feet and 3 inches, thence west 9 rods, thence north to the place of beginning." The certified tax bill offered in evidence, described the land as ".75 a pt S W 4, S W 4, sec. 17, town 61, range 24," in the city of Trenton, State of Missouri. When this tax-bill was offered in evidence, the defendant's counsel objected to the same on the ground that the description was too vague and indefinite to describe the land and support a judgment. This objection was overruled, and the defendant duly excepted. The plaintiff also offered evidence tending to show that this land belonged to Daniel Merritt, and that he had conveyed the three-fourths of an acre described in the petition by the same description, to James Merritt, and that afterwards all the...