De Tienne v. Peters

• Citation: 188 S.W.2d 954,354 Mo. 166
• Decision Date: 02 July 1945
• Docket Number: 39321
• Parties: F. B. DeTienne v. Hazel M. Peters, William W. Peters, Jr., Howard Alan Peters and James Warren Peters, (Defendants), J. E. Mollett, Lester McFarling and Elsie McFarling, (Defendants), Appellants
• Court: Missouri Supreme Court

188 S.W.2d 954

354 Mo. 166

F. B. DeTienne v. Hazel M. Peters, William W. Peters, Jr., Howard Alan Peters and James Warren Peters, (Defendants), J. E. Mollett, Lester McFarling and Elsie McFarling, (Defendants), Appellants

No. 39321

Supreme Court of Missouri

July 2, 1945

Appeal from Pike Circuit Court; Hon. Theodore Bruere Judge.

Reversed and remanded (with directions).

Don C. Carter for appellants.

(1) The court erred in holding that the tax deed is null and void and constituted a fraud upon the plaintiff, DeTienne. Bussen Realty Co. v. Benson, 349 Mo. 58, 159 S.W.2d 813; Rudd v. Scott, 175 S.W.2d 774; Swain v Boeving, 175 S.W.2d 591; Heagarty v. Hawkins, 173 S.W.2d 923; Johnson v. McAboy, 169 S.W.2d 932; Kennen v. McFarling, 165 S.W.2d 681; Nichols v. Roorbach, 162 S.W.2d 274; Manhurin v. Tucker, 161 S.W.2d 423. (2) The court erred in awarding judgment against the defendants, Mollett and McFarling, for rents and profits of said real estate from November 3, 1941, at $ 2 per acre, per annum. No evidence offered that defendants, Mollett and McFarling, took possession of said real estate on November 3, 1941, or that they were ever in possession of said real estate.

Fry & Edwards and J. O. Barrow for respondent.

(1) The tax sale constituted a fraud in law upon the State and upon the owners of the land. The Jones-Munger tax law contemplates a sale for a consideration at least sufficient to pay the delinquent taxes, interest and charges. Heagerty v. Hawkins, 173 S.W.2d 923; Bussen Realty Co. v. Benson, 159 S.W.2d 813; Manhurin v. Tucker, 161 S.W.2d 423; Kennen v. McFarling, 165 S.W.2d 681; Swain v. Boeving, 175 S.W.2d 591; Rudd v. Scott, 175 S.W.2d 774; J.C. Nichols Inv. Co. v. Roorbach, 162 S.W.2d 274; Johnson v. McAboy, 169 S.W.2d 932. (2) The collector's deed is null and void for the reason that it merely recites that "said real estate after having been duly advertised was offered for sale", and said deed does not show affirmatively by a recital of facts that the land described therein was advertised for sale in the manner required by law. Yankee v. Thompson, 51 Mo. 234; Cook v. Farrah, 105 Mo. 492; Burden v. Taylor, 124 Mo. 12; Spurlock v. Allen, 49 Mo. 178; Smith v. Funk, 57 Mo. 239; Hubbard v. Gilpin, 57 Mo. 441. (3) Respondents were entitled to recover judgment for the fair cash rental value of the property since the date of the tax sale.

Westhues, C. Bohling, C., dubitante; Barrett, C., concurs.

OPINION

This is an appeal from a decree of the Circuit Court of Pike County, Missouri, setting aside a deed executed by the Collector of Audrain County, Missouri, pursuant to a tax sale under the provisions of Art. 9, chapter 74, Mo. R.S.A., R.S. Mo. 1939, known as the Jones-Munger Delinquent Tax Laws. The plaintiff, DeTienne, claimed to own a two-thirds interest in the land. The other one-third interest was claimed by the successors in title of Anna B. Peters. These heirs were named as defendants. Defendants, J. E. Mollett, Lester McFarling and his wife, Elsie, claimed to own the whole title under the deed set aside by the court. These latter defendants appealed.

The land involved contained eighty acres. It was sold at a tax sale held on November 3, 1941, for $ 180.00. The appellants were the purchasers. The taxes due at that time amounted to $ 455.73. The land in question had been offered for sale on two previous occasions, that is, in November, 1939, and November, 1940. It was assessed for the year 1941 at a valuation of $ 2300. The trial court found that the value of the land at the time of the sale was in excess of $ 1600. The evidence amply sustained that finding. The trial court also found that the sale price was so grossly inadequate as to constitute a legal fraud. Note the wording of the decree:

". . . is null and void, and of no effect for the reasons that the consideration of $ 180 paid by defendants, J. E. Mollett and Lester McFarling, was so much less than the taxes due on said real estate and was so grossly and shockingly inadequate and unconscionable as to constitute in and of itself a badge of fraud and a fraud in law upon this plaintiff and the defendants, Peters, and the State of Missouri, the said real estate having a value at the time of the tax sale, in excess of $ 1,600."

The collector issued a deed to Mollett and the McFarlings dated November 3, 1941. This deed was recorded on November 4, 1941. These defendants also paid the taxes for the years 1941 and 1942. The trial court entered a judgment in plaintiff's favor for the rental value of the property at $ 2.00 per acre per annum from November 3, 1941, until appellants returned possession to plaintiff and his co-owners, the Peters heirs. Plaintiff also asked for partition and the court so decreed.

The facts as above stated certainly authorized the trial court to enter the decree it did. See Daniel v. Mollett, No. 39,320, 354 Mo. 50, 188 S.W.2d 54; Heagerty v. Hawkins, 173 S.W.2d 923; Bussen Realty Co. v. Benson, 349 Mo. 58, 159 S.W.2d 813. Appellants do not seriously contend that the evidence above related does not support the finding of the court that the sale price was grossly inadequate. Appellants do, however, contend that under the peculiar facts in this case a court of equity should not grant plaintiff any of the relief asked for. The peculiar facts appellants have in mind, and as disclosed by the record, are as follows: The record title to the land at the time of the tax sale on November 3, 1941, was in the name of Hallie Bauer, Clara Harrison and Anna B. Peters. After the sale and after the purchasers of the land at the sale had recorded their deed Clara Harrison, on December 15, conveyed her one-third interest in the land to plaintiff, F. B. DeTienne, for a consideration of $ 35.00. On January 6, 1942, Hallie Bauer conveyed her one-third interest to plaintiff for a consideration of $ 20.00. The interest of Anna B. Peters was not purchased by plaintiff. The record shows that Anna B. Peters died on May 23, 1940, and that defendants, Hazel M. Peters, William W. Peters, Jr., Howard Alan Peters and James Warren Peters owned the one-third interest of Anna B. Peters at the time the present suit was filed. Howard Alan Peters was a minor. A guardian ad litem, appointed by the court, filed an answer wherein he adopted the allegations of plaintiff's petition and also joined in a prayer for partition. The other Peters defendants filed a similar answer.

It is appellants' contention that since plaintiff paid only $ 55.00 for a two-thirds interest in this land and since he was a total stranger until after the sale and after the deed of the purchasers at the sale had been recorded, he has no right to complain or charge that the $ 180.00 paid by the purchasers was grossly inadequate. Appellants assert that a court of equity will not aid a plaintiff standing in the circumstances as shown by this record. In this we think appellants are correct. This land was sold under the provisions of sec. 11130, R.S. Mo., 1939, Mo. R.S.A., which provides that if land is offered for the third time there will be no right of redemption. The purchasers at the sale had the right and did immediately record their deed. Plaintiff, therefore, had notice of the sale. With this knowledge he purchased a two-thirds interest in the land from the former owners for the nominal sum of $ 55.00. Can he maintain an action in equity to set aside the sale on the theory that the price of the land at the sale was so grossly inadequate as to be fraudulent in law? We think not. We desire to call attention to a case decided by division one of this court, Wetmore v. Berger, No. 39386, 354 Mo 158, 188 S.W.2d 949, in which the property was subject to be redeemed under the statute and therefore the purchaser of the land at the tax sale bought...