Yeamans v. Lepp

• Decision Date: 19 February 1902
• Citation: 66 S.W. 957,167 Mo. 61
• Parties: YEAMANS et ux. v. LEPP.
• Court: Missouri Supreme Court

66 S.W. 957

167 Mo. 61

YEAMANS et ux. v. LEPP.

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

TAXATION — SEPARATE TRACTS OR LOTS — ILLEGAL SALES — SUIT TO SET ASIDE — TENDER — PRESUMPTION.

1. The terms "tract" or "lot," in Rev. St 1889, § 7703, providing each tract or lot shall be chargeable with its own taxes, and section 7683, providing that the judgment for taxes shall state the amount of taxes due on each tract or lot, and decree that the real estate, or so much thereof as may be necessary to satisfy the judgment, be sold, are used as defined in section 7553, providing the assessor shall consolidate all lands owned by one person in a section, and all lands owned by one person in a block, into one tract or lot, where it is practicable, and section 7564, providing each tract and lot shall be assessed separately, but all land in a section and lots in a block, owned by one person, which are contiguous or can be

consolidated, shall be valued as one tract or lot.

2. Where several tracts of land are properly assessed separately, the sale of all in bulk for the total of all the taxes is invalid, being a contravention of Rev. St. 1889, § 7703, charging each tract with its own taxes.

3. Where land lies in the same section, is contiguous, can be consolidated into one tract, and is owned by the same persons, it will be presumed, in the absence of anything to the contrary, that, as provided by Rev. St. § 7564, it was assessed as one tract.

4. Violation of Rev. St. 1889, § 7683, requiring subdivision of land in sale for taxes, while not rendering the sale void, authorizes it to be set aside on a direct proceeding in equity against the purchaser.

5. A legal tender is not necessary for maintenance of bill in equity to set aside a tax deed, but it is enough that the owner offered to pay the purchaser the amount he paid, with costs and expenses, and renews such offer; and, even without the offer, equity may grant the relief on terms.

Appeal from circuit court, Jefferson county.

Suit by Stephen M. Yeamans and wife against Henry Lepp. Judgment for defendant, and plaintiffs appeal. Reversed.

This is a bill in equity to set aside a sheriff's deed to the defendant, made under a special fi. fa. issued upon a judgment for taxes, amounting to $9.75, and costs, $15.18, assessed against the S. ½ of the N. W. ¼, and S. W. ¼, and W. ½ of the S. W. ¼ of the N. E. ¼ of section 28, township 39, range 4 E., in Jefferson county, containing 260 acres, being the property of the plaintiffs. The petition alleges that in June, 1897, the plaintiffs were made defendants in a tax suit filed in Jefferson county by the tax collector of that county to recover said taxes assessed against said land; that at the September term, 1897, a judgment was rendered for said taxes and costs, and foreclosing the lien of the state upon said land therefor; that on October 7, 1897, a special execution was issued to the sheriff, commanding him to sell said land, or so much thereof as was necessary, to satisfy the debt and costs; that the sheriff sold the said land to defendant for $190, and made him a deed thereto, under which the defendant now claims the land. The petition then alleges the following: "Plaintiffs claim that said land is reasonably worth the sum of $800, and that at said sale of said land the sheriff wholly violated the law and the commands of the execution in this respect: that he did not offer for sale the said land in its subdivision, or in any natural or artificial subdivision of the same; and plaintiffs allege that any one of said natural subdivisions would have sold for more than enough to pay said debt and costs, leaving remaining for these plaintiffs the larger part of said 260 acres of land, but that, unmindful of his duty to these plaintiffs, the said sheriff, at the request of parties interested in the sacrifice of plaintiffs' land, and wholly unmindful of the commands of the execution and his duty to the plaintiffs, never once offered said land in smaller divisions than the whole, whereas the land has three natural subdivisions, one of 20, one of 80, and one of 160 acres, and that the said 80-acre and 160-acre subdivision of the whole could have been conveniently divided into at least six subdivisions of 40 acres each, and so sold, but the said sheriff proceeded to sell the whole, thus attempting, in the interest of parties interested in acquiring all of said land, to confiscate the whole of the property of the plaintiffs in an unlawful and illegal way, for about one-quarter of its reasonable value, but for which he realized on said illegal sale the sum of $190, or about seven times the taxes and costs, or the amount of said judgment. Plaintiffs show that there is now in the hands of the sheriff of said county the sum of $146.57, the proceeds in excess of the amount of said judgment, and that these plaintiffs have refused to receive the same, but they here now request that this honorable court by its order have the same paid into this court to await the final disposition of this suit; that plaintiffs have offered before the institution of this suit to reimburse and pay the said defendant, Lepp, his money, costs, and expenses, if he would reconvey said property to plaintiffs, but he has refused so to do, thus persisting in carrying out the conspiracy to confiscate the whole of plaintiffs' land to pay a small judgment for taxes, and showing his disposition to retain an illegal and unjust advantage of plaintiffs. A plat of said land is hereto attached, marked `Exhibit A,' showing the position of said land and the subdivisions of the same, any one of which would have sold, as plaintiffs believe, for sufficient to satisfy and discharge said debt and costs. Plaintiffs here now offer to pay to said defendant, Lepp, the said amount of money by him bid for said land, or so much thereof as will be necessary, in addition to said $146.57, to equal the amount of his bid, $190. Plaintiffs show that they had no knowledge of said sale, nor as to the time or place when the same was to be sold, until some months after the sale; that they never consented to nor requested that said land be sold in a body; that, had they known of the contemplated sale of said land, they would have directed the sale of said land in tracts or subdivisions as the law directs and contemplates; that plaintiffs employed attorneys to institute these proceedings to have said sale set aside as soon as they became aware of the facts. Wherefore plaintiffs pray that said sale be set aside, that said deed be canceled and held for naught, and for such other orders and decrees as to the court may seem equitable and just in the premises." The defendant demurred to the petition, generally because it did not state facts sufficient to constitute a cause of action or to entitle the plaintiffs to the equitable relief sought, and specially because it did not allege that the plaintiffs had tendered to the defendant, before the institution of the suit, the amount of the purchase price paid by the defendant. The circuit court sustained the demurrer, the plaintiffs refused to plead further, a final judgment was rendered for the defendant on demurrer, and the plaintiffs appealed.

Warren D. Isenberg and Jos. G. Williams, for appellants. Kleinschmidt & Reppy, for respondent.

MARSHALL, J. (after stating the facts).

1. The question presented for adjudication is whether the petition states a cause of action. The plaintiffs' contention is that, "the property being susceptible to division and being one tract, a portion of one section, all connected, and sued on as one tract, it was the duty of the sheriff to subdivide the land and sell only so much as was necessary to satisfy the judgment and costs." On the contrary, the defendant's contention is that the provision of the statute requiring a sheriff to subdivide real estate offered for sale under execution is only directory, and, further, that, "there being no allegation in the petition that the real estate was assessed and sued on as one tract, or that the lands were owned by the plaintiffs [the plaintiffs are Stephen M. Yeamans and Alice A., his wife] as tenants in common or by the entirety, each 40-acre tract was liable for its own taxes, and no parcel was liable for the taxes of any other." And in support of the special demurrer the defendant claims that the petition...