The State ex rel. Flentge v. Burrough
| Decision Date | 19 May 1903 |
| Citation | 74 S.W. 610,174 Mo. 700 |
| Parties | THE STATE ex rel. FLENTGE, Collector, v. BURROUGH et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court. -- Hon. Henry C. Riley Judge.
Reversed.
Robert L. Wilson for appellant.
The court committed error 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 Railroad, 114 Mo. 11; Railroad v. Cass Co., 53 Mo. 29; City of Jefferson v. Whipple, 71 Mo. 520; Hughes v. Thomas, 29 So. 74; State ex rel. v Sanford, 127 Mo. 372; Western v. Flanagan, 120 Mo. 61. The assessment of property and all proceedings thereunder, so far as the property-owner is concerned, are in invitum and the discharge of the duties of the assessor are to be done in subordination to the law. The assessor is required to assess the land in the smallest legal subdivision, or, if that can not be done, then it must be done by metes and bounds. In this case neither course was pursued by the assessor. In each year "Pt. Lots 54, 55 and 56" were all jumbled together, said lots containing in the aggregate 293 acres. The assessment lists do not show the number of acres assessed to defendant in either lot, or the value of the land in either lot. The assessor completely ignored the statutory requirement that he should assess in the smallest legal subdivision, or, if that can not be done, then with a proper description of the land. R. S. 1899, sec. 9168; State ex rel. v. Railroad, 114 Mo. 1.
John A. Hope for respondent.
(1) The assessor is required to call on the taxpayer and take from him a list of his property; the taxpayer is required to enter a true and correct statement of his property in the blank furnished by the assessor, and sign and swear to it. Secs. 9144 and 9145, R. S. 1899. The assessor is liable to a fine for each list received not duly sworn to. Sec. 9146, R. S. 1899. The form of the oath to be signed and sworn to by the taxpayer is prescribed, and he shall be subject to indictment and fine of not less than ten nor more than one thousand dollars for refusal to make the oath. Sec. 9147, R. S. 1899. Further penalties for failure to give the assessor a proper list are provided for by sections 9149, 9150 and 2257, Revised Statutes 1899. With the taxpayers' lists the assessor completes his assessor's books and then files the list with the county clerk. Secs. 9147, 9170, R. S. 1899. Appellants are sued for taxes for the years 1894, 1895, 1896 and 1897. The statutes mentioned above were in force long prior to these years, and are still in force. (2) In view of the above statutory provisions, the presumption is that the appellants furnished the county assessor the description of their real estate given in the taxbill; especially so in the absence of proof to the contrary. Bank v. Dandridge, 12 Wheat. 70; Hartwell v. Root, 19 Johns. 345; Lenox v. Harrison, 88 Mo. 496; Long v. Joplin Mining & Smelting Co., 68 Mo. 430. This presumption is strengthened by the positive proof that Judge Burrough furnished the description in his list to the assessor for the year 1897. Having furnished the assessor lists of their property, in which the land was described as it is in the taxbill, appellants are estopped to object to the sufficiency of the description, and can not dispute the validity of the assessment nor defeat the collection of the taxes. Lake County v. Bank, 68 Cal. 15; City v. Flood, 64 Cal. 504; People v. Stockton, 49 Cal. 414; People v. Atkinson, 103 Ill. 45; Albany Brewing Co. v. Town of Meriden, 48 Conn. 245; Conwell v. Pres., etc., Connersville, 8 Ind. 358; Scollard v. Dallas, 42 S.W. 640; Lane v. March, 33 La. Ann. 554; Jeffries v. Clark, 23 Kan. 448; Moody v. Galveston, 50 S.W. 481; Fulcher v. Fulcher, 29 S.E. 91; Cooley on Taxation, pp. 283, 284, 264; 1 Blackwell on Tax Titles, p. 209, sec. 223; 25 Am. and Eng. Ency. Law 209, 451; American Union Express Co. v. St. Joseph, 66 Mo. 675; Mathews v. Kansas City, 80 Mo. 231. (3) But disregarding the presumption that appellants furnished the description, and laying aside also the sworn list offered in evidence, there was no error in rendering judgment for plaintiff. (a) The purpose of a description is to enable the owner to know that his land is assessed. In this case the evidence shows appellants own only one body of land, consisting of parts of outlots 54, 55 and 56, and that they own only one piece in each of the outlots -- the three pieces adjoining each other and forming one farm. The 70 acres being the only land they own in the outlots, they could not have been misled by the description. It makes no difference how much difficulty a stranger or a purchaser at tax sale might have in locating the land; the description must mislead the owner. Fulcher v. Fulcher, 29 S.E. 91; Allen v. Woodbridge Twp., 42 N. J. L. 401; Shaw v. Orr, 30 Iowa 360; Jones v. Pelham, 84 Ala. 208. (b) There was no error in admitting parol evidence for the purpose of applying the description to the land and identifying the land described. Brown v. Walker, 11 Mo.App. 226; Brown v. Walker, 85 Mo. 262; 2 Phillips' Evid., Cowen & Hill's notes, p. 718, note 510; p. 738, note 514; Stewart v. Colter, 31 Minn. 385; Ames v. Lowry, 30 Minn. 283; Judd v. Anderson, 51 Iowa 345; Knote v. Caldwell, 43 Kan. 464; Driggers v. Cassady, 71 Ala. 529; French v. Patterson, 61 Maine 302; Welty, Assessments, 170; Woodside v. Wilson, 32 Pa. St. 52; Allen v. Woodbridge Twp., supra. (c) The description is sufficient if the land can be identified by a competent surveyor with reasonable certainty, either with or without the aid of extrinsic evidence. Law v. People, 80 Ill. 268; Fowler v. People, 93 Ill. 116; People v. Stall, 101 Ill. 346. (d) The only way to describe such land as appellants' as definitely as they contend for would be by giving its metes and bounds. If all such land in Cape Girardeau county had to be described definitely in its tax books there would not be room in the courthouse for the books and the physical labor required to do the work would be enormous. It is a fact of universal notoriety, not only in Cape Girardeau county, but throughout the State, that the revenue officers, in describing such land as appellants' for taxation, simply designate it as part of a certain lot or survey. Appellants were not ignorant of this custom; and the assessment of their land by the customary and generally understood method did not mislead them, especially since one of the appellants is a lawyer and had been a county officer for many years. Brown v. Piper, 91 U.S. 42; 2 Greenl. Ev., sec. 249.
This is an action by the collector of Cape Girardeau county for back taxes for the years 1894, 1895, 1896 and 1897, on certain lands described in the petition, amounting at the time of the trial to two hundred and seventy-seven dollars and seventy-eight cents, for which plaintiff had judgment and the enforcement of its lien against the land for the payment of the same. Defendants appeal.
The petition is in the usual form, and describes the land by metes and bounds.
The answer is a general denial.
Defendants admit that Mrs. Annie K. Burrough is the owner of the land described in the petition.
The taxbill upon which the action is based is as follows:
BACK TAXBILL.
ss
I, E. W. FLENTGE, Collector of the Revenue within and for the County of Cape Girardeau, in the State of Missouri, do hereby certify that the following amounts of Back Taxes remain delinquent in favor of the several Funds for the several years, and on the Real Estate lying and being situate in said County and State, set opposite thereto, to-wit:
[SEE ILLUSTRATION IN ORIGINAL]
In witness whereof, I have hereunto set my hand at the city of Jackson, in said county and state, this 20th day of July, 1899.
E. W. FLENTGE,
Collector of the Revenue within and for the County of Cape Girardeau, Mo.
By J. F. McLain, Deputy.
The case was tried by a jury, and when the taxbill was offered in evidence by plaintiff, defendants objected upon the ground that "the description contained therein is so vague and indefinite and uncertain, it will not support a judgment." The objection was overruled and exception duly saved. The ruling of the court in this regard is the principal ground relied upon by defendants for a reversal of the judgment.
By section 7555, Revised Statutes 1889, every county assessor is required to make out an assessment book, called the "real estate book," containing all lands subject to assessment. The third column shall contain an accurate description of the land by the smallest legal subdivisions, or by smaller parts, lots or parcels when sections and the subdivisions thereof are subdivided into parts, lots or parcels; the fourth column shall contain the actual cash valuation of each tract.
By section 7552, Revised Statutes 1889, it is provided that "each assessment of real estate so...
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