United States v. CERTAIN LAND, ETC.

• Decision Date: 28 February 1947
• Docket Number: No. 492-M.,492-M.
• Citation: 70 F. Supp. 730
• Parties: UNITED STATES v. CERTAIN LAND IN WAYNE COUNTY, MO., KNOWN AS TRACT NO. 8, MINGO NATIONAL WILDLIFE REFUGE PROJECT, et al.
• Court: U.S. District Court — Eastern District of Missouri

70 F. Supp. 730

UNITED STATES v. CERTAIN LAND IN WAYNE COUNTY, MO., KNOWN AS TRACT NO. 8, MINGO NATIONAL WILDLIFE REFUGE PROJECT, et al.

No. 492-M.

District Court, E. D. Missouri, S. E. D.

February 28, 1947.

Harry C. Blanton, U. S. Atty., of Sikeston, Mo., and Charles J. Hughes, Asst. U. S. Atty., of St. Louis, Mo., for plaintiff.

Oliver & Oliver and R. B. Oliver III, all of Cape Girardeau, Mo., for intervenor H. A. Luer.

Limbaugh & Limbaugh, of Cape Girardeau, Mo., for intervenor Mrs. Nettie B. Stivers.

Arthur T. Brewster, of St. Louis, Mo., for intervenor Arthur T. Brewster.

HULEN, District Judge.

This is a condemnation proceeding. $5166.66 was paid into court as compensation for a 480 acre tract. It is claimed by each intervenor in whole or part. The Government refers to the land as in the Mingo swamp. Landowners call it Mingo Drainage District. We shall call it Mingo land. A hearing on the respective interests asserted was held and ruling on the rights of the parties in the fund is now before the Court. The intervenors are H. A. Luer, Arthur T. Brewster and Nettie B. Stivers (widow of George W. Stivers). Luer claims the entire fund based on a collector's deed; Nettie B. Stivers by inheritance from her husband, the record owner prior to the tax sale; Brewster claims a one-half interest under an express trust. At the hearing counsel for Luer and Mrs. Stivers announced they had agreed on a settlement of their conflicting claims. The issue is now between Luer and Mrs. Stivers on the one hand and Brewster on the other.

If Luer acquired title by the collector's deed Brewster's claim must fail. We consider the attack on Luer's claim first. Luer purchased the land in November, 1938, for $400. Taxes then due were $344.12. The excess of the bid over the taxes was received by Mrs. Stivers following the death of her husband in 1940. After purchase Luer paid taxes for the years 1938, 1939, 1940, 1941 and 1942 of $791.61. He received a tax deed October 2, 1941. Luer's bid of $400, plus taxes paid to date of receiving the collector's deed, equals approximately $2 per acre for the land. The tax sale is attacked on (1) inadequacy of consideration, (2) sale of more land than necessary to pay delinquent taxes, and (3) defect in notice of sale and collector's deed.

For proof of inadequacy of price Brewster relies upon a stipulation: "If H. A. Luer were present as a witness in this case he would testify that all of the land involved in this case * * * was worth $10 or more per acre as of February 12, 1943." This method of making proof is not commended. It deprives the Court of an opportunity to pass upon the credibility of the witness in determining what weight shall be given to his opinion. This we know, Luer had an interest in 1943 in appraising the land at its maximum value in view of the exceptions which had been filed to the Commissioners' report of 1943 and anticipated jury trial to determine value, which took place in 1945. Luer has been before this Court frequently as a witness on the value of Mingo land. Luer's opinion as to values has been uniformly excessive — in many instances grossly so. There is no substantial evidence in the record as to the value of the land in 1938, the time of Luer's purchase at tax sale. The Government's decision to take land by condemnation cannot in law be considered as increasing or lowering the value of such land — in fact it does. The record here indicates the contemplated condemnation proceedings increased the value of land in the Mingo Drainage District. The land is cut over timber, is part of the "Mingo Swamp," and has little or no value except for sale to the Government for a wildlife game refuge. The letter from Mr. Stivers to Brewster in November, 1937, reflects how this land was valued in 1937 and lends support to the Court's opinion that its value at that time was its probable sale to the Government. We quote from the Stivers letter. The first paragraph of the letter describes the tract of land in issue, then proceeds:

"I don't think that we should leave anything undone to get a title to this land even if it reaches the point where we might have to put up some real money. Wappapello dam seems to be a certainty in my judgment and this land should be valuable * * * You understand I am sure that I am not sufficiently interested to redeem. * * *" (Emphasis added.)

Even with the effect of condemnation proceedings on increase of value Stivers did not value the land to the extent of "redeeming" it, as a speculation. How then can it be said that the price paid by Luer was such as to shock the conscience of the Court? In the condemnation proceeding its value had to be fixed. It was fixed by a jury, on widely divergent opinions as to value, as of 1943. We cannot say the sale of the tract in 1938 at $400 was so grossly inadequate as to evidence fraud.

Complaint that more land was sold than was necessary to pay taxes is also without merit. Section 11128, R.S.Mo. 1939, Mo.R.S.A., which provides for the sale of land in tracts or parcels, specifically provides:

"* * * this section shall be construed directory in character and a failure to comply therewith shall not of itself invalidate any sale."

There is another statute equally fatal to the claims: Section 11177, R.S.Mo.1939, Mo.R.S.A., provides a three-year statute of limitations in suits to "defeat or avoid a sale or conveyance of lands for taxes". In Francis v. Grote, 14 Mo.App. 324, it was held, suits to void tax sales for failure to comply with the statute regarding sale of land in tracts is barred by the applicable statute of limitations.

Brewster questions the notice of sale as failing to comply with Section 11126, R.S.Mo.1939, Mo.R.S.A. We think the particulars on which the notice of sale is criticized are of the same character as the Supreme Court of Missouri had under consideration in Kennen v. McFarling, 350 Mo. 180, 165 S.W.2d 681. The test stated by the Court in the Kennen case is could "* * * anyone * * * have been misled or * * * have misunderstood the purpose of the tax sales or what land was to be sold." (loc. cit. 684)

Brewster does not charge the notices were misleading or that the errors complained of caused anyone to misunderstand the purpose of the tax sale or what land was to be sold. No such attack could be sustained. It is asserted the deed is defective because not executed "in the name of the state" as required by Section 11149, R. S.Mo.1939, Mo.R.S.A. We have examined the deed and find it to be on form "Approved by State Tax Commission," and substantially in accordance with the statutory form. See Section 11150, R.S.Mo.1939, Mo. R.S.A. The deed recites, in accordance with the statutory form, that it is "between the State of Missouri, by W. E. Short, Collector of said County * * *." The acknowledgment follows the statute verbatim.

We hold the collector's deed offered by Intervenor H. A. Luer valid as against the attack of Intervenor Arthur T. Brewster.

Our conclusions on the validity of the Luer deed make it unnecessary to pass on the remaining issues of "express trust" and laches, but we do so in the interest of a complete record.

Brewster's intervening petition recites only that he is the "equitable owner of an undivided one-half interest" in the land. He testified in his deposition, "Prior to 1923 Mr. Stivers and I bought" the land; he brought two suits to quiet title; the basis of his equitable claim is a letter written by Mr. Stivers dated July 12, 1926. By brief Brewster alleges that by reason of certain letters an "express trust" is established in the land in his favor.

Brewster has the burden of proving the express trust alleged. Long v. Conrad, Mo.Sup., 42 S.W.2d 357.

The condemned land was purchased prior to 1923 by Stivers, husband of intervenor. Brewster does not claim he paid any part of the purchase price. The abstract indicates a purchase price of $2.50. That Brewster had an interest in the land from time of purchase we cannot find in view of Brewster's deposition testimony showing lack of knowledge as to how Stivers acquired the land. This leaves only the letters passing from Stivers to Brewster to sustain the claim of express trust.

Certain conclusions follow a careful study...