Zimmerman v. Chicago, Great Western Railway Company
| Decision Date | 12 June 1900 |
| Citation | 57 S.W. 718,156 Mo. 561 |
| Parties | ZIMMERMAN v. CHICAGO, GREAT WESTERN RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.
Affirmed.
Dan W Lawler and James C. Davis for appellant.
(1) The notice required by the sections of the statutes is jurisdictional and the validity of all proceedings for the collection of taxes subsequent thereto is dependent upon the question as to whether or not such notice has been given. If the city fails to give such notice through its officer authorized thereto then it acquires no jurisdiction over the real estate for the purpose of its sale for taxes and any act done by the city in that respect without such notice having previously been given amounts to a nullity and conveys neither title to the property nor a right to the purchaser to recover the taxes paid by him at such sale. Early v Doe, 16 How. 610; Washington v. Pratt, 8 Wheat 681; Moulton v. Blaisdell, 24 Me. 283; R. S. 1889, secs. 1350, 1351, 1352; Flint v. Sawyer, 30 Me. 226; Alexander v. Pitts, 7 Cush. 503; Bush v. Davison, 16 Wend. 550; Jenks v. Wright, 61 Pa. St. 410; Clarke v. Rowan, 53 Ala. 401; Stiles v. Weir, 26 Miss. 187; Steuart v. Meyer, 54 Md. 454; Blalock v. Gaddis, 33 Miss. 452; Nelson v. Goebel, 17 Mo. 161; Reeds v. Morton, 9 Mo. 868; Prindle v. Campbell, 9 Minn. 212; Black on Tax Titles, sec. 78; Cooley on Taxation (2 Ed.), 482. In the case at bar the notice was without signature either officially or otherwise. (2) If the city was without authority or jurisdiction to sell the real estate described in the petition and in controversy in this cause for lack of notice of its intention so to do, then its act in attempting to make the sale was a mere nullity and without effect. The most that can be said in favor of the attempted sale is that it operated as an assignment of the city's right to collect the taxes due on the property at the time, yet such an assignment by the city to an individual to collect the taxes due to it is without constitutional or statutory authority and is contrary to the theory of the government of this State and the United States inasmuch as it amounts simply to a farming out of the revenue of the sovereignty. Cooley on Taxation (2 Ed.), 434. (3) If the sale by the city to respondent is held to be an assignment by it to her of its rights to collect the taxes due on the property at that time then respondent acquired no greater rights than the city possessed. If therefore the city was barred by the statute of limitations from a collection of the taxes at the time of the institution of this suit, then also was respondent barred from a recovery on the same account because of her position as assignee of the city. R. S. 1889, secs. 1349, 7692.
Benjamin Phillip and Maurice Phillip for respondent.
(1) Appellant misconceives the effect of the tax sale. The sale did not operate as an unconditional assignment to the plaintiff of the city's right to collect the taxes. The effect of the sale was to subrogate the plaintiff to the rights of the city to collect the taxes which she could assert when, and only upon condition that her tax deed failed. It was therefore necessary that plaintiff be defeated in her suit for the recovery of the property purporting to be conveyed by the tax deed, before her right to recover the taxes accrued. "Plaintiff's right to recover these taxes paid, only arose upon his being defeated in his action to recover the land, and therefore the statutes of limitation did not commence to run against this claim, and have no application to it, independent of his right of action to recover the land." Pitkin v. Reibel, 104 Mo. 513; McClure v. Lavender, 31 N.W. 672; Bryant v. Estabrook, 16 Neb. 217; R. S. Mo. 1889, section 1373. It will be noted that the provisions of section 219 of the act of 1872 (2 Wag. Stat., p. 1207) relative to the right of the holder of a void tax deed to recover the taxes paid which was involved and construed in Pitkin v. Reibel, 104 Mo. 505, are exactly like the provisions of sec. 1373, R. S. 1889, applicable to the case at bar. (2) Appellant next insists that the tax sale was made without the notice required by law, and that in consequence, the sale was a nullity and conveyed neither the title to the property nor a right to the purchaser to recover taxes paid by him at such sale. The cases cited by appellant are authority for the proposition that a tax sale made without the notice prescribed by the statute is insufficient to deprive the owner of the title to his property but not one of them holds, nor can a case be found which even intimates that the purchaser can not recover the taxes paid by him at such sale in any state where the common law has been abrogated by a statute, giving to the holder of a tax deed the right to recover the taxes when he is defeated in his action to recover the property. That a void sale can not operate to convey title, and that a tax sale without notice is void, is conceded; but the fact that the sale is void for want of notice does not affect the purchaser's right to recover the taxes paid, since that right is derived from the statute and does not depend on the validity of the sale. Steuart v. Myer, 54 Md. 468; White v. Shell, 84 Mo. 569; R. S. 1889, sec. 1373; Bingham v. Burmingham, 103 Mo. 350; Burke v. Brown, 148 Mo. 309.
This is an action in ejectment to recover possession of lot 1 in block 8, in the city of St. Joseph. The petition is in two counts, the first in usual form in ejectment. The second for the recovery of the amount of the taxes paid by plaintiff on the premises for the tax title, under which she claimed in the first count, and afterwards, and for penalty, interest and costs, under the provisions of section 1373, Revised Statutes...
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