Walker v. Mills

• Decision Date: 26 February 1908
• Citation: 210 Mo. 684,109 S.W. 44
• Parties: WALKER v. MILLS et al.
• Court: Missouri Supreme Court

109 S.W. 44

210 Mo. 684

WALKER v. MILLS et al.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

Rehearing Denied April 1, 1908.

1. TAXATION—TAX SALE—PERSONS WHO MAY PURCHASE—ATTORNEYS.

An attorney for a tax collector at the time tax proceedings are begun but not really attorney for the tax collector in office at the time of a tax sale may become purchaser of the property at the tax sale.

2. EXECUTION — SALE — SETTING ASIDE — GROUNDS.

Where there is gross inadequacy of price, coupled with some evidence of fraud or unfairness, an execution sale may be set aside.

3. TAXATION—TAX SALES—SETTING ASIDE— PLEADING.

In an action to declare title to city lots in which plaintiff relies upon a purchase at a tax sale, the defense of inadequate consideration and unfairness in the sale cannot be urged where not pleaded.

4. SAME—ESTOPPEL.

Where a party claims a judgment to be void on the ground of nonservice of defendants in such judgment, and having actual notice of the sale of the property under such judgment stops the sale, and gives notice that the sale is void by reason of the nonservice of the defendants, he is estopped to set aside the sale on the ground of the inadequacy of the price received, since the inadequacy of the price was due to his own act.

5. SAME — DESCRIPTION OF PROPERTY — TITLE OF PURCHASER.

Although a judgment in a tax suit is not against each tract separately for the amount due on each, and is for that reason erroneous, it is not void, and having been rendered by a court having jurisdiction of the subject-matter, the title of a purchaser of property bought at execution sale under such judgment is not affected by such error.

6. SAME—PROCESS—EFFECT OF NONSERVICE.

A judgment in a statutory suit for taxes, brought against several defendants, may be vacated as to one and stand good as to the rest, and where two defendants in such a suit are served with process but the third defendant is not, the former cannot complain of the nonservice on the latter.

7. SAME—NATURE OF JUDGMENT.

A judgment in a statutory suit for taxes is strictly against the property, and does not bind the parties further than it may affect their interest in the property itself, yet, unless one having an interest in the land is made a party to the suit, his interest is not affected by the judgment.

8. SAME—JUDGMENT—COLLATERAL ATTACK.

Where, in a statutory suit for taxes, one of the defendants is not served with process, but waives the service, in writing, on the petition instead of the summons attached thereto, the method of waiver is an irregularity only, and does not subject the judgment to collateral attack either by the defendants who were served with process or by the defendant making waiver.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Suit by Len Walker against F. T. Mills and others to quiet title to city lots. From a decree for plaintiff, defendants appeal. Affirmed.

John Schmook, for appellants. W. D. Tatlow, for respondent.

GRAVES, J.

Action under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to declare title to two lots in the city of Springfield. Petition in the usual form. Separate answer by defendant Mills is first a general denial. Secondly, it is claimed that the appealing defendant, Mills, is the holder of, or beneficiary in, a deed of trust on said property which was given by one Don Reaves in 1899, and which has not been satisfied and that the said Reaves was the owner of the lots. Thirdly, it is averred that plaintiff procured his pretended title in a certain tax proceeding by the Collector of Greene County v. F. T. Mills, T. J. Delaney, and Don Reaves, in which plaintiff was tax attorney representing the collector; the remainder of the third count and the fourth count is in this language: "That said judgment was and is void and of no effect because this court never had nor acquired jurisdiction of said defendants to render said judgment by reason of the failure to serve process upon said defendants as by law required, and because said judgment does not recite the amount of taxes and interest due upon each of the lots. For further answer defendant says that he tendered and offered to pay said taxes and costs of said tax suit prior to the date of said judgment, all of which facts were well known to plaintiff prior to said tax sale." The other two defendants filed no answer. Reply was general denial. Upon a trial the defendant Mills requested by proper motion a finding of facts, which was made by the court as follows: "On February 28, 1900, the collector of revenue for Greene county filed suit against defendants Mills, Delaney, and Don Reaves for taxes on the property in controversy; June 18, 1901, summons issued against all; Mills and Delaney were served, Reaves was not. The summons was returned before the return day Reaves `not found.' Publication was afterwards ordered to the September, 1902, term for Reaves. Same was duly published. Afterwards and before judgment Reaves wrote on the petition the following attempted waiver of process and service: `I hereby waive the issuance of summons in the above-entitled cause, and accept service hereof. Don Reaves, Defendant.' Judgment was afterwards rendered and the land sold in bulk, but for less than the amount of taxes. Mills was all of the time the real owner and in possession of the property, having taken possession as such by consent of Reaves. Plaintiff bought at the sale. I hold the proceedings valid as against Mills, and that plaintiff is the legal owner by virtue of said purchase. Default as to Reaves." Then follows the judgment which is elaborately written and contains therein a more explicit finding of facts, than the one made by the court hereinabove set out. Defendant's motion for new trial having been overruled he duly perfected his appeal. Further statement of the facts will be given in the disposition of the points made.

1. It appeared from the evidence that the plaintiff was attorney for the collector at the time the tax proceeding was begun, but was not really tax attorney for the collector in office at the time of the sale. He had however looked after all the cases brought by him while acting for the collector who appointed him and this case with the others. Defendant contends that the attorney for the collector has no right to purchase at a tax sale. There are many respectable and forceful cases holding that a public officer whose duty it is to collect taxes cannot purchase at such sale. Such, however, is not the rule in Missouri. Walcott et al. v. Hand, 122 Mo. 621, 27 S. W. 331; Turner v. Gregory, 151 Mo., loc. cit. 106, 52 S. W. 236. In the latter case this court said: "As to the other contention that the sheriff's deed to Oscar Reeder was void because Reeder was the collector who brought the suit, we have ruled otherwise in Walcott v. Hand, 122 Mo. 621, 27 S. W. 331, to which we still adhere." If the collector can purchase at such sale, there is no good reason to assign why his attorney could not likewise purchase. There was no issue of fraud, collusion, or anything of that character charged in the answer; so that, upon the single question of the right of the plaintiff to purchase at the tax sale, under our cases we must hold that he had such right, and this contention is ruled against defendant.

2. It is next urged that there is inadequacy of price in such sale, and that this, when coupled with slight additional facts, will authorize the court to set aside a sale. It is true that where there is a gross inadequacy of price, coupled with some evidence of fraud or unfairness an execution sale may be set aside under the authorities in this and other states. It would be sufficient for this contention to say that the answer in this case neither pleads inadequacy of price nor fraud, collusion, or unfairness. There is not a word in the answer that would authorize a court to enter a judgment upon such question, if we recognize the rule that the judgment must accord with the issues made by the pleadings....