Voights v. Hart

• Decision Date: 02 December 1920
• Docket Number: No. 214904.,214904.
• Citation: 285 Mo. 102,226 S.W. 248
• Parties: VOIGHTS et al. v. HART et at.
• Court: Missouri Supreme Court

226 S.W. 248

285 Mo. 102

VOIGHTS et al. v. HART et at.

No. 214904.

Supreme Court of Missouri, Division No. 1.

December 2, 1920.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Dietrich Fadler, and on his death revived in the name of Herman L. Voights, trustee, and another against B. L. Hart and another. From judgment for plaintiffs, defendants appeal. Affirmed.

Clarance Wofford, Bert S. Kimbrell, and Walter W. Calvin, all of Kansas City, for appellants.

Guthrie, Conrad & Durham and Hale Houts, all of Kansas City, for respondents.

SMALL, C. I.

Petition filed January 30, 1918, by Dietrich Fadler, and, he having died before the cause was tried, it was revived in the name of respondents, as trustee and executor under his will. The object of the petition is to cancel and set aside certain "certificates of purchase and a city collector's tax deed to lots 236 and 237, in block 17, in McGee's addition to Kansas City, owned by said Fadler. The lots were sold by the collector for nonpayment of the park maintenance and boulevard assessments of the South Park district for the year 1911, and bid in by the city, and the certificates of purchase afterwards, on January 9, 1918, assigned to de, fendant B. L. Hart, to whom a tax deed was issued on said date, and recorded in the office of the recorder of deeds, January 10, 1918. There are a number of grounds in the petition attacking the validity of the tax sale, and also the validity of the certificates of purchase and tax deed as void on their face, as well as for matters not so appearing, which will be mentioned in the course of the opinion as far as necessary for the disposition of the case.

The prayer of the petition is that said certificates and tax deed be declared void and canceled to remove the same as a cloud on plaintiffs' title, and that the court try and determine the title of plaintiffs and of defendants, and define and adjudge the title and interest of plaintiffs and defendants, and for general relief.

The answer of defendants admits the issue of the certificates of purchase and tax deed, sets out the resolution of the park board and city council levying a special assessment for the purpose of maintaining, repairing, etc., parks, boulevards, etc., in the South Park district for the year 1911, and also an ordinance, approved April 25, 1911, providing for the payment and collection of said special assessment which said ordinance provided, "that the laws and ordinances governing the entering, extending, payment, and collection, and the sale for nonpayment of general taxes of the city, shall, as far as practicable, govern the entering, extending, and collection and the sale for the nonpayment of the special assessment hereby levied; * and provided, further, that if the sale of any land to enforce the collection of this assessment is contrary to the public policy or laws of this state, then the amount," etc., "may be collected by suit prescribed by section 26, article 8, of the city charter."

The answer further alleged the several steps taken by the city in relation to the sale and issue of the certificates of purchase and the tax deed and the recording thereof. The answer further alleged that after the assignment of said certificates and the issue of the tax deed plaintiff Fadler paid no taxes on said property, but the defendant 3. Hart, after obtaining his tax deed, paid all the city taxes on said property for the years 1913 to 1916, which, including said park and boulevard maintenance tax for the year 1911, amounted to $1,425.00; that after November 14, 1911, said Fadler never paid, nor offered to pay, any taxes, and never offered to redeem said property from tax sale, except by the institution of this suit on January 30, 1918; that by reason of the premises said Fadler was guilty of `aches, and is barred and estopped from asserting any right to said property or redeeming the same, and that said defendant, by virtue of such tax sale and his ,tax deed, is the absolute owner of said lot. Wherefore the defendants pray that the plaintiffs' petition and bill be dismissed.

The reply traversed the new matter of the answer.

At the trial there was no question raised as to the validity of the special assessment for park and boulevard taxes for the year 1911 for which the property was sold. The certificates of purchase were introduced. In evidence, both dated January 5, 1912, and recorded May 2, 1912; one showing that said lot 236 was sold for $20.40 to Kansas City, and the other, lot 237, sold to said city for $17.87. These certificates were in precisely the same language, except one related to lot 236 and the other to lot 237. Neither recited that the property was sold for the park and boulevard assessment of 1911 or special assessments of any kind, but followed the form for certificates of purchase of land sold for general city taxes.

The treasurer or collector's deed which defendant B. L. Hart received, and under which he claims title, omitting the acknowledgment, was as follows:

"Know all men by these presents that whereas, the following described real property, viz.: "Lot 236, block 17, McGee's Add., lot 237, block 17, McGee's Add., situate in Kansas City, in the county of Jackson and state of Missouri, was subject to taxation for the year 1911; and whereas, the taxes assessed upon the said real property for the year aforesaid remained due and unpaid at the date of the sale hereinafter mentioned; and whereas, the city treasurer of said Kansas City did on the 14th day of November, 1911, by virtue of the authority in him vested by law, at the sale begun and publicly held on the first Monday of November, 1911, the first day on which the annual tax sale began, and continued to and including said first mentioned day, expose to public sale at the office of the city treasurer in Kansas City aforesaid, between the hours of ten o'clock in the forenoon and five o'clock in the afternoon, in conformity with all the requirements of the law in such case made and provided, the real property above described, for the payment of taxes, penalty, and costs then due and unpaid upon said real property; and whereas, at the place aforesaid, Kansas City, of the county of Jackson and state of Missouri, having offered to pay the sum of $38.27, being the whole amount of taxes, penalty, and costs then due and remaining unpaid on said real property for lot 236, block 17, McGee's Add., lot 237, block 17, McGee's Add., and the payment of said sum having been by it made to said city treasurer, the said property was stricken off to it at that price; and whereas, the said Kansas City did, on the 9th day of January, 1918, duly assign the certificate of purchase of the property as aforesaid, and all its right, title, and interest to and in said real property to B. L. Hart, of the county of Jackson and state of Missouri; and whereas, five years have elapsed since the first day on which the annual tax sale began, and the said property has not been redeemed therefrom, as provided by law; and whereas, the city treasurer of Kansas City aforesaid did, at least four months before the expiration of the time limited for redeeming said real property, publish a notice as required by the law in such case made and provided, that unless said real property was redeemed on or before the day limited therefor it would be conveyed to the purchaser or his heirs or assigns:

"Now, therefore, I, Harry E. Barker, city treasurer of Kansas City, county and state aforesaid, for and in consideration of the sum of $39.27 taxes, penalty, and costs due on said real property for the year 1911 to the city treasurer of said Kansas City, paid as aforesaid, and by virtue of the law in such case made and provided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said B. L. Hart, his heirs and assigns, the real property last hereinbefore described, to have and to hold unto him, the said B. L. Hart, his heirs and assigns, forever.

"Subject, however, to all rights of redemption provided by law.

"In witness whereof I, Harry B. Barker, city treasurer of Kansas City, as aforesaid, have hereunto subscribed my name and affixed the corporate seal of Kansas City this 9th day of January, 1918.

                         Harry E. Barker
                   "City Treasurer of Kansas City
                  "[Rev. $50]
                "[L. S.]"
                

Ernest Forbes, for plaintiffs, testified that he was redemption clerk in the city auditor's office; that the property was sold for said park and boulevard assessment; that there were no records in that office showing that the city paid anything for either of the lots in question at the tax sale involved; and that the city never pays the bid it makes for property at tax sales; it simply bids in the property, and later acquires the amount of the taxes by assignment of the certificates or redemption.

Plaintiffs' testimony further showed that Dietrich Fadler, the owner of the lots, died in February, 1918; that at his death he was 90 or 91 years old; that he was a bachelor; that he was never away from the property for four or five years before his death; that he did not pay the taxes, because a young lawyer told him that the law under which the taxes were levied he thought was unconstitutional, and it was unjust, and therefore he did not think he ought to pay them.

Plaintiffs' counsel, in open court, renewed their offer to reimburse the defendant B. L. Hart on account of outlays, the same as in the petition.

It was admitted by defendants that the property was worth $50,000 at all times mentioned in the petition.

At the close of plaintiffs' testimony defendants offered and the court refused a declaration to the effect that the plaintiffs were not entitled to recover.

The defendants introduced the resolution of the park board and resolution and ordinance of the city relating to the levy and collection of the park and boulevard maintenance taxes for 1911, which were as stated in the...