Wellshear v. Kelley

Decision Date30 April 1879
Citation69 Mo. 343
PartiesWELLSHEAR v. KELLEY, Appellant.
CourtMissouri Supreme Court

Appeal from Barry Circuit Court.--HON. W. F. GEIGER, Judge.

Norman Gibbs for appellant.

1. The circuit court had no jurisdiction. Const. of Mo., art. 6, § 22; Wag. Stat., § 2, p. 430: Laws 1877, pp. 384, 389, §§ 2, 5, 6, 14; Wag. Stat., § 226, p. 1209; § 184, p. 1197; § 182, p. 1196; Laws 1877, p. 376; House Jour. 1877, pp. 552, 553, 815; Senate Jour. 1877, p. 349.

2. The petition in the tax suit against Mary A. Henry is fatally defective. [The grounds urged are stated in the opinion.] In proceedings to enforce the collection of taxes there are no presumptions in favor of the validity of the proceedings or the power of the officers. All the facts which are essential to the exercise of the power must affirmatively appear on the face of the record; they cannot be supplied by proof or made out by intendment. Blackwell Tax Titles, (2 Ed.) 39, 40, 43, 44, 52, 53, 65; Nelson v. Goebel, 17 Mo. 161; Donohoe v. Hartless, 33 Mo. 335; Lagroue v. Rains, 48 Mo. 536; Large v. Fisher, 49 Mo. 307; Abbott v. Doling, 49 Mo. 302; Spurlock v. Allen, 49 Mo. 178; Hume v. Wainscott, 46 Mo. 145; Yankee v. Thompson, 51 Mo. 234; Smith v. Funk, 57 Mo. 239; Hubbard v. Gilpin, 57 Mo. 441.

3. The circuit court never acquired jurisdiction by reason of a fatal defect in the notice to Mary A. Henry. It merely informed her that the “object and general nature of the suit was to obtain judgment against her for the taxes, interest and costs due on the land therein described for the years mentioned, amounting in the aggregate to $78.68.” This publication only notified her that a personal judgment would be rendered against her; such a judgment would be void. Clegg v. State, 42 Texas 605; Smith v. McCutchen, 38 Mo. 415; Abbott v. Sheppard, 44 Mo. 273. In said notice there is no intimation that said land was delinquent or forfeited, nor that said taxes were back taxes, nor that they were a lien upon said land, nor that the object and nature of the suit was to enforce any lien upon said land. The notice should have shown the jurisdiction over the object and nature of the suit, and as it wholly failed to show this, the judgment rendered thereon was void.

4. The taxes for the years 1870 and 1871, were barred by the statute of limitation at the time the act of April 12th, 1877, went into effect, and being included in the aggregate amount of the judgment, as appears on the face of the judgment, and also on the face of the deed, renders the judgment, the sale and the deed void. St. Louis v. Newman, 45 Mo. 138: Blackwell on Tax Titles, (2 Ed.) 160; McLaughlin v. Thompson, 55 Ill. 249.

5. The deed is void upon its face, in that it shows, 1. That the taxes for 1870 and 1871 were included in the judgment, whereas the taxes of those years were barred by the statute of limitations. 2. That it does not affirmatively appear that the notice required by law by the sheriff to be given, was, by advertisement in a “newspaper, printed and regularly published weekly or daily,” in Barry county. This court has repeatedly decided that compliance with every prerequisite of the statute must appear upon the face of the deed, and is essential to its validity. 3. That it does not appear on the face of the deed that the sale was made at the place designated in the notice given, viz.: “At the south front door of the court house, in the town of Cassville, in the said county of Barry.”

6. The sale was void. The law only authorizes a sale of land for the payment of taxes, and the prefended sale of the land in controversy not being for the amount of taxes found to be due in the pretended judgment--in fact being for only $8.00, while the amount of taxes and interest was $88.49, and the costs $35.47--is void. There can be no valid sale for less than the amount of taxes, interest and costs due. The act of April 12th, 1877, did not repeal the act of March 20th, 1872; it only repeals the acts and parts of acts inconsistent therewith, (see section 20,) and the provision of the revenue act of March 30th, 1872, that there shall be no sale for less than the taxes, interest and costs due thereon, (sections 199 to 203 inclusive,) are not inconsistent with the act of April 12th, 1877, and, therefore, are not repealed by it. They remain in full force and are absolutely essential to the protection of the interests of the State in sales under that act.

7. The back tax act is unconstitutional.

J. L. Smith, Attorney-General, L. C. Krauthoff and John W. Wellshear for respondent.

1. The back tax act is not retrospective within the meaning of the constitutional prohibition against retrospective acts. From a comparison of it with the former law, (Wag. Stat., § 226, 1209; § 182, 1196; § 215, 1205,) it is very clear that the enactment of this act and the consequent repeal of the statutory provisions in force at the time of the levy and assessment of the taxes referred to, in no wise impaired any vested right of any person, imposed any additional obligation or disability, or created any new liability. Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483. Its only effect was to change the remedy provided to the State for the enforcement of delinquent taxes due to it--the Legislature having had the undoubted power to provide and change the remedies for that purpose. City v. Coons, 37 Mo. 44; Cooley Const. Lim., 361, 365; Story on Const., § 1385; Ogden v. Saunders, 12 Wheat. 349; Bruns v. Crawford, 34 Mo. 330; State v. St. Louis Co. Ct., 34 Mo. 546; City v. Oeters, 36 Mo. 456; Drehman v. Stifel, 41 Mo. 184, 204; Porter v. Mariner, 50 Mo. 364. The fact that the jurisdiction to enforce the right was changed to different courts, and that the costs of the proceeding were increased, did not create any additional obligation. The courts in which to enforce a right and the costs of the proceeding are a part of the remedy, and the power to change the remedy carries with it the power to change the tribunal, and if an increase of costs follows from such change, the act is not for that reason invalidated. DeCordova v. Galveston, 4 Texas 470; Farnsworth v. Vance, 2 Cold. (Tenn.) 108, 117; Woodfin v. Hooper, 4 Humph. 12, 21; Hope v. Johnson, 2 Yerg. 123; Vanzant v. Waddel, 2 Yerg. 260; Scammon v. Chicago, 44 Ill. 278. The only effect of the act was to provide a shorter time in which land could be redeemed. The privilege of redemption is not a vested right, and the period could be changed by the Legislature at will. The time given by the new act, sixteen months, is certainly reasonable. Cooley Const. Lim., 364, 367.

2. The proceeding provided by this act for the foreclosure and enforcement of the State's lien for delinquent taxes is general in its character, and it was the intention of the Legislature to make proceeding, judgments and sales under its provisions stand just as proceedings for the enforcement of private rights and judgments and sales therein, and to make the same rules and principles applicable thereto. See the following decisions on very similar statutes in California and Nevada: Cal. Stats. 1861, pp. 419, 437: Nev. Stats. 1864, pp. 271, 291; Eitel v. Foote, 39 Cal. 439; Mayo v. Foley, 40 Cal. 281; Reeve v. Kennedy, 43 Cal. 643; Jones v. Gillis, 45 Cal. 541; State v. W. U. Tel. Co., 4 Nev. 338; State v. C. P. R. R. Co., 10 Nev. 47, 60. See, also, Blackwell Tax Titles, 209, 212, §§ 184, 188; Wal lace v. Brown, 22 Ark. 118; Scott v. Pleasants, 21 Ark. 364; Chesnut v. Marsh, 12 Ill. 173; Thatcher v. People, 79 Ill. 597.

3. The circuit court had jurisdiction of the suit against Mrs. Henry. Const., art. 6, § 22. The act uses the phrase courts of competent jurisdiction” in order to permit the imposition of a part of the additional labor caused by these suits upon the numerous courts of common pleas, &c., in the several counties, and not to impose the whole of it on the circuit courts. The order of publication was sufficient to bring her into court. Sec. 6 of the act. But if this was not so, the question is not now open, the court having found by its judgment “that the defendant has been duly notified.” Kane v. McCown, 55 Mo. 181; Freeman v. Thompson, 53 Mo. 183; Johnson v. Gage, 57 Mo. 160; Rumfelt v. O'Brien, 57 Mo. 569; Carson v. Sheldon, 51 Mo. 436 ;Bernecker v. Miller, 44 Mo. 102; Groner v. Smith, 49 Mo. 318; Latrielle v. Dorleque, 35 Mo. 233; Childs v. Shannon, 16 Mo. 331; Hahn v. Kelly, 34 Cal. 391; Reily v. Lancaster, 39 Cal. 354; Reeve v. Kennedy, 43 Cal. 643. The petition in the tax suit would be sufficient on demurrer, but if it were otherwise, the judgment is not collaterally assailable for such defect. Whitman v. Taylor, 60 Mo. 127; O'Reilly v. Nicholson, 45 Mo. 160; Chouteau v. Nuckolls, 20 Mo. 442; State ex rel. v. Towl, 48 Mo. 148; Mayo v. Foley, 40 Cal. 281.

HENRY, J.

Mary A. Henry, a non-resident of the State, owned the northwest quarter of section 24, in township 24, of range 28, in Barry county.

At the March term, 1878, of the Barry circuit court, a suit was instituted against her at the relation of the State to the use of J. W. Lecompte, collector of the revenue of said county, to subject said land to sale for payment of back taxes for the years 1870, 1871, 1872, 1873, 1874, 1875 and 1876, amounting in the aggregate to $78.68. An order of publication was made against her, which was duly published in the Cassville Democrat, a newspaper published in said county, notifying Mary A. Henry that plaintiff had commenced suit against her in the Barry circuit court, by petition, the object and general nature of which was to obtain judgment against her for the taxes, interest and costs due on said land (describing it) for the years aforesaid, (naming them,) and the aggregate amount of taxes due on said land, $78.68, and that unless she should be and appear at said court, at the next term thereof, to be begun and held at the court house in the town of Cassville, in said county, on the 14th day of March, 1878, and, on or before the...

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