Wilcox v. Phillips
| Decision Date | 14 July 1914 |
| Parties | WILLIAM A. WILCOX et al., Appellants, v. J. B. PHILLIPS et al |
| Court | Missouri Supreme Court |
Appeal from Putnam Circuit Court. -- Hon. George W. Wanamaker Judge.
Reversed and remanded (with directions).
D. M Wilson, J. W. Clapp, A. W. Mullins and G. W. Haverfield for appellants.
(1) Where by inadvertence principles of law have been incorrectly declared on the first appeal, or where later decisions have otherwise and correctly declared the law, this court will re-examine and correct its errors on the second appeal in the same case. Mangold v. Bacon, 237 Mo. 496; Timber Co. v. Railroad, 242 Mo. 11. (2) This court will review its own decisions on second appeal, where no hardship would result to innocent parties. The appellate courts are always open, even upon the second appeal, for the correction of errors and the administration of justice. Hamilton v Marks, 63 Mo. 167; Bird v. Sellers, 122 Mo. 23; Rutledge v. Railroad, 123 Mo. 131; Wilson v. Beckwith, 140 Mo. 369; Baker v. Railroad, 147 Mo. 152; Bealey v. Smith, 158 Mo. 522; Williams v. Butterfield, 214 Mo. 429; Bank v. Douglass Co., 146 Mo. 53. (3) The mandate of this court directing that further proceedings be held in this case in accordance with the opinion delivered, did not change in any way the usual course of proceeding in the case as to any new matters introduced into the record. Sheppard v. Wagner, 240 Mo. 409; McMurray v. Railroad, 161 Mo.App. 140. (4) The facts being essentially different from those on the former appeal, this court will not be bound by its former opinion. Crispen v. Hannovan, 86 Mo. 168; Fuchs v. St. Louis, 167 Mo. 653; May v. Crawford, 150 Mo. 525; Grumley v. Webb, 48 Mo. 562. (5) The Township Organization Law of 1879 (Laws 1879, p. 218) included in the Revisions of 1879 (R. S. 1879, ch. 162), 1889 (R. S. 1889, ch. 162), and 1899 (R. S. 1899, ch. 168), was unconstitutional. State ex rel. v. Gibson, 195 Mo. 251. (6) An act adjudged unconstitutional is as if it had never been. Rights cannot be built up under it and it constitutes a protection to no one who has acted under it. Cooley's Constitutional Limitations (5 Ed.), p. 224. (7) The township assessor who assessed this land, was wholly without authority to make the assessment and his assessment was null and void. A valid assessment is an essential prerequisite to the lawful exercise of the power of taxation. It is a necessary condition of an effectual transfer of the title. Abbott v. Lindenbower, 42 Mo. 168; State ex rel. v. Railroad, 114 Mo. 1. (8) Where it affirmatively appears from the recitals in a tax deed that no judgment was rendered against the land sold for taxes and intended to be conveyed by it, the deed is void. Guffey v. O'Reiley, 88 Mo. 418. (9) A patent from the United States for land need not be delivered nor recorded. It must be recorded in the General Land Office at Washington before it is issued, and when issued the grantee is invested with the title. Our statute in regard to conveyances does not apply to patents; and their effect as vesting title and affording notice is not dependent upon their being recorded. 2 Jones on Real Property, secs. 1377, 1378; Sec. 2809, R. S. 1909; Mosher v. Bacon, 229 Mo. 338; Patterson v. Langston, 69 Miss. 400. (10) The record in this case shows that the Wilcoxes and their grantors had been in the constructive possession of the land since 1864, a period of over thirty-five years, with their deeds recorded, and that for fourteen consecutive years, from 1882 to 1895, inclusive, the taxes had been paid on the land by Mrs. Wilcox, after her death (1884) by her husband, and after his death (1889) by her heirs. The collector had therefore knowledge from his own and the county records that the Wilcoxes were claiming to be and were the actual owners of the land, and the records in the recorder's office showed Mrs. Wilcox to be the apparent owner. Zweigart v. Reed, 221 Mo. 33; Evans v. Robberson, 92 Mo. 200; Watt v. Donnell, 80 Mo. 195; Moore v. Woodruff, 146 Mo. 597; St. Joseph v. Baker, 86 Mo.App. 310; Evarts v. Lumber Co., 193 Mo. 433; Stuart v. Ramsey, 196 Mo. 415; Sensenderfer v. Kemp, 83 Mo. 588; Swisher v. Sensenderfer, 84 Mo. 104; Life Ins. Co. v. Smith, 117 Mo. 292; Feller v. Lee, 225 Mo. 319; Rothenberger v. Garrett, 224 Mo. 191. (11) The record further shows that the collector knew from the consolidated back tax book in his office, and the notations therein in red ink under the heading "Name of Owner," that Abbie D. Wilcox or her heirs were the last record owners of the land and knowing this before suit was brought, brought his suit accordingly. The facts in this record are entirely different from those in Payne v. Lott, 90 Mo. 676; Nolan v. Taylor, 131 Mo. 224, and Vance v. Carrigan, 78 Mo. 94. (12) Tax suits must be brought against the owner of the property and the collector in bringing the suit and the purchaser at the tax sale are bound to take notice of the record of deeds; and one who buys at such sale in a tax suit against one not the record owner gets only the title of the defendant in the suit. Allen v. Ray, 96 Mo. 542; Evans v. Robberson, 92 Mo. 192.
N. A. Franklin, John W. Bingham, Calfee & Painter and Campbell & Ellison for respondents.
(1) All questions that were, or might have been raised in the former trial of this case, were, for the purpose of former adjudication, determined and passed upon, by the judgment of this court at the former hearing. See Wilcox v Phillips, 199 Mo. 288; Donnell v. Wright, 147 Mo. 639; Spratt v. Early, 199 Mo. 491; Emmert v. Aldridge, 231 Mo. 124; Cantwell v. Johnson, 236 Mo. 575; Mangold v. Bacon, 237 Mo. 496. (2) Where, after an appeal a cause is reversed and remanded to the court below, with special directions, that court must do what the appellate court directs, and nothing more. Atkinson v. Dixon, 70 Mo. 381; State ex rel. v. Givan, 75 Mo. 516; Chateau v. Allen, 74 Mo. 56; Bridge Co. v. Stone, 194 Mo. 175. (3) The law of a case as declared on appeal becomes the law of the case on a second trial, especially where in the former appeal, the judgment was reversed with special directions. State ex rel. v. Edwards, 144 Mo. 467; Rees v. McDaniel, 131 Mo. 681; Railroad v. Bridge Co., 215 Mo. 286. (4) Wm. H. Brownlee was the record and apparent owner and the proper party defendant in the tax suit. Wilcox v. Phillips, 199 Mo. 288; Vance v. Corrigan, 78 Mo. 94; Watt v. Donnell, 80 Mo. 195; Payne v. Lott, 90 Mo. 676; Allen v. Ray, 96 Mo. 542; Nolan v. Taylor, 131 Mo. 224. (5) The deeds from Montgomery to Martin, Martin to Bradbury and Bradbury to Wilcox were outside the chain of title and of themselves no notice of title in any one. Parties are not chargeable with the notice of the record of deeds outside the chain of title. Williams v. Butterfield, 214 Mo. 425; Tidings v. Pitcher, 82 Mo. 379; Becker v. Strother, 167 Mo. 306; Bank v. Bank, 171 Mo. 327; Dingman v. McCollum, 47 Mo. 372; Cross v. Watt, 206 Mo. 394; Crockett v. Maguire, 10 Mo. 34; 16 Am. & Eng. Ency. Law (1 Ed.), p. 800. (6) A judgment obtained under a statute which is afterwards declared unconstitutional is valid until reversed, and cannot be impeached collaterally. 23 Cyc. 1071, note 43; Buckmaster v. Carlin, 4 Ill. 104; Cassel v. Scott, 17 Ind. 514. (7) It is not permissible to show in any collateral proceeding that the assessment on which the taxes were based was illegal and void, or that the statute or ordinance authorizing the assessment was unconstitutional or invalid. Mayo v. Foley, 40 Cal. 281; Mayo v. AhLoy, 32 Cal. 477. (8) A judgment obtained under a law which had been virtually repealed by a treaty, declaring that no further proceedings should be taken under such law, still it can not be avoided in a trial of title of lands claimed under such judgment. McNeil v. Knight, 4 Mass. 282. (9) The jurisdiction of the circuit court in an action for delinquent taxes is founded on the Constitution and laws of the State, and its judgment therein cannot be impeached in a collateral suit by showing that no assessment was made against the land for the years for which the taxes were adjudged delinquent; also the assessment books, papers and records in the office of the county clerk are inadmissible in a collateral proceeding to show the invalidity of the sale of land for taxes. Gibbs v. Southern, 116 Mo. 204; Evarts v. Lumber & Mining Co., 193 Mo. 444; Dorrance v. Dorrance, 242 Mo. 666. (10) The circuit court having general jurisdiction, therefore, it had jurisdiction of the subject-matter in this case. Livingston v. Allen, 83 Mo.App. 294; Hadley v. Bernero, 103 Mo.App. 549; Leonard v. Sparks, 117 Mo. 103. (11) A judgment for taxes, if brought against the right parties, is conclusive of all questions as to the amount of taxes due, the regularity of the assessment, the certificate of the collector, and is not open to attack in a collateral proceeding. Railroad v. View, 156 Mo. 608; Holt County v. Cannon, 114 Mo. 514. (12) Brownlee was the proper and only necessary party defendant in the tax suit. He was personally served and had his day in court. If the party bringing the suit for taxes had no authority to do so, this fact cannot be shown in a collateral attack. Brownlee, the defendant in the tax suit, had an opportunity to be heard, but sinned away his day of grace. Rankin v. Real Estate Co., 199 Mo. 345; Kansas City to use v. Youmans, 213 Mo. 175; Robinson v. Levy, 217 Mo. 498; Mangold v. Bacon, 229 Mo. 473. (3) Appellants in their equity count alleges that respondents' tax deed is void on its face, and in the next breath ask to have it declared a cloud on their title. If it is void on its face it is certainly no cloud; and further if it is void on its face, that fact could have been shown on the first...
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