Opinion
June 10, 1941. Rehearing Denied, March 13, 1942.
TAXATION: Jones-Munger Act: Tax Deed Set Aside. It was the duty of the deceased guardian of the holder of the homestead rights to pay the taxes. The defendants inquired at the collector's office, and were misinformed as to the taxes not being paid. There were errors in the tax books and the notice of sale. The purchaser at the tax sale was an adjoining landowner, and kept silent until the tax deed was issued, having purchased at a shockingly inadequate price. The facts constitute fraud upon the defendants, and the tax deed should be set aside.
Appeal from Circuit Court of County of St. Louis. — Hon. John A. Witthaus, Judge.
REVERSED AND REMANDED ( with directions).
Alfred H. Kerth and Dalton W. Schreiber for appellants.
(1) In ejectment by purchaser at tax sale against tenant, landowners, being adverse claimants, have a right to become parties defendant. Sec. 701, R.S. 1929; Queen City Inv. Co. v. Kreider, 31 S.W.2d 1002. (2) Sales of lands for delinquent taxes under the Jones-Munger Act by ex parte proceedings are in derogation of private rights of property and of the common law, and the statutory proceedings thereunder should be strictly construed in favor of the taxpayer and strict compliance therewith vigorously exacted. Schafley v. Baumann, Collector, 108 S.W.2d 363; Meriwether v. Overly, 228 Mo. 218, 129 S.W. 1; Large v. Fischer, 49 Mo. 307. (3) The publication of public notice under which the Collector sold the property in question is defective and insufficient and is no notice to defendants to give the Collector authority to offer and to sell the lands, and his deed thereunder is invalid and said sale is in violation of Section 9952-b, R.S. Mo., Laws 1933, page 430, and Section 9958-b, R.S. Mo., Laws 1933, page 441, and to permit said sale to stand deprives defendants of due process of law in violation of Sec. 30, Article II, of the Constitution of the State of Missouri. Sec. 9952-b, R.S. Mo., Laws 1933, p. 430; Sec. 9958-b, R.S. Mo., Laws 1933, p. 441; Sec. 30, Art. II, Mo. Const.; 67 A.L.R. 885 to 908; 61 C.J., sec. 1515, p. 1114, sec. 1519, p. 117; Meriwether v. Overly, 228 Mo. 218, 129 S.W. 1; Spurlock v. Dougherty, 81 Mo. 171; Martin v. Kitchen, 195 Mo. 477, 93 S.W. 780; Schafley v. Baumann, Collector, 108 S.W.2d 363. (4) The sale by the Collector under which defendant secured a deed to the lands in question is invalid for the reason that said Collector did not, at said sale, offer for sale so much of the lands of defendants as would pay the taxes, interest and charges thereon. Sec. 9952-c, R.S. Mo., Laws 1933, p. 431; Roth v. Gebbert, 123 Mo. 21, 27 S.W. 528; Shelton v. Franklin, 224 Mo. 342, 123 S.W. 1084, 135 A.L.R. 537; Corrigan v. Schmidt, 126 Mo. 304, 28 S.W. 874; Yeomans v. Lepp, 167 Mo. 61, 66 S.W. 957; 26 R.C.L., sec. 357, p. 399. (5) The bid and purchase price paid for the lands in question is so inadequate and unrelated to the true value of said lands and improvements as to amount to a fraud in law. Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650; Ellis v. Powell, 117 S.W.2d 225; Lindsey v. St. Louis, 139 S.W.2d 906. (6) The deed by the Collector to the plaintiff for the lands in question is invalid for the reason that the defendants appeared in good faith at the office of the Collector and offered to pay the taxes thereon at a time before the statutory redemption period expired and were informed by said Collector that all taxes against said lands were paid. Sec. 9956-a, R.S. Mo., Laws 1933, p. 437; Hoge v. Hubb, 90 Mo. 489, 7 S.W. 443; Gould v. Sullivan, 84 Wis. 659, 54 N.W. 1014, 36 A.L.R. 955, 20 L.R.A. 487; Hampton v. McClannahan, 143 Mo. 151, 45 S.W. 297. (7) The sale and subsequent deed by the Collector to the plaintiff for the lands in question are invalid for the reason that, in addition to the inadequacy of the purchase price, there were other circumstances over which the defendants had no control and occurrences which tended to mislead the defendants as to the true facts, notwithstanding their efforts and diligence in the protection of their property rights. Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650; Guinan v. Donnell, 201 Mo. 173, 98 S.W. 478.
C.L. Shotwell for respondent.
(1) An action in ejectment is an action for possession of real estate, and only a tenant in possession and his landlord are proper parties thereto. Miller v. Boulware, 267 Mo. 487. (2) The cross bill of appellants is really an action to determine and quiet title. There is a defect of parties defendant therein, the same having been raised by the answer of the respondent to said cross bill. This defect was caused by Carrie Broeker not being in court; the appearance of Paul S. Limerick as curator of the estate of Carrie Broeker, the person of unsound mind, was not sufficient to bring her into court. Therefore, she was not in court and a defect of parties defendant existed. Webb v. Hayden, 166 Mo. 39; Gibson v. Shull, 251 Mo. 480; Judson v. Walker, 155 Mo. 166. (3) The lack of authority in the curator to sue in his own name was properly raised by the answer to the cross bill which specifically challenged his authority. Clowers v. Railroad, 21 Mo. App. l.c. 216. (4) Said Carrie Broeker did not have a dower interest in this property, and the evidence so shows. Moore v. Hoffman, 327 Mo. 852, 39 S.W.2d 339; Falvey v. Hicks, 315 Mo. 442; Cave v. Wells, 319 Mo. 930. (5) The dower and quarantine right of said Carrie Broeker became barred by limitation in 1927, ten years after the death of her husband, and after that time her only interest in the property was her homestead right; that right did not include all the land, but only property of the value of fifteen hundred dollars ($1500.00). Sec. 608, R.S. 1929. (6) The statutes prescribe the manner of redeeming real estate, and if said Carrie Broeker had wished to redeem her portion of this land she could have done so only in the manner prescribed by the statutes. Expressio unius est exclusio alterius. Secs. 9956-a, 9956-b, Laws 1933, p. 437; State ex inf. v. Athletic Club, 261 Mo. l.c. 599. (7) The Jones-Munger Act is constitutional. State ex rel. v. Bader, 336 Mo. 259, 78 S.W.2d 835. (8) The burden was on appellants to prove the invalidity of this sale and the statutes prescribe the grounds for setting such sale aside. Appellants have not met that burden. Sec. 9960-b, Laws 1933, p. 442. (9) The right to tax is an attribute of sovereignty and the Legislature in its wisdom may curtail the power of the courts to set aside tax sales. Such acts of the Legislature are constitutional. Virginia Coal Co. v. Thomas, 97 Va. 527, 34 S.E. 486; Callanan v. Hurley, 93 U.S. 387; Gerke Brewing Co. v. St. Clair, 46 W. Va. 93, 33 S.E. 122; Kehoe v. Auditor General, 138 Mich. 586, 101 N.W. 809; Berkey v. Burchard, 119 Mich. 101, 77 N.W. 635; Phelps v. Meade, 41 Iowa 470; Smith v. Cleveland, 17 Wis. 573. (10) The notice of sale was sufficient to notify appellants and the description therein is valid. Pruitt v. Levee Drainage District, 341 Mo. 120, 106 S.W.2d 467; Hector v. Harrell, 248 Mo. 166; Hiller v. Keaton, 236 Mo. 694; Sec. 9978, R.S. 1929. (11) The collector committed no error in selling this entire tract at one time, if he did so, for the following reasons: (a) There is no evidence before this court to show that the sale of a part of said property would have produced sufficient funds to pay the taxes then due and for which the property was being sold. (b) The deed, itself, is no evidence of the fact that this sale was en masse; and there is no showing that the collector abused his discretion. (c) Appellants took no action to apply for redress within a reasonable time. (d) There is no showing that respondent had notice of how this property was sold on November 8, 1934. Shelton v. Franklin, 224 Mo. l.c. 363; Culbertson v. Edwards, 243 Mo. 433. (12) Sales of land for taxes en masse are not set aside by the courts unless it is shown that injury thereby has resulted to the owner of the property, and unless the property owner shows by proper evidence that a sale of a part of the tract would have brought sufficient funds to pay the taxes on the entire tract. Until they make such showing, they have not shown that they have been damaged. (13) Under the laws of Missouri, taxes are a lien on land until paid for. When respondent purchased this property at tax sale he took it subject to all prior and subsequent taxes which were then a lien on it. Jaicks v. Oppenheimer, 264 Mo. 693; Mo. Real Estate Loan Co. v. Burri, 202 Mo. App. 242; Excelsior Springs v. Henry, 99 Mo. App. 450. (14) In computing the value of real estate, the courts always take into consideration all incumbrances on the property at the time of the sale; thus respondent did pay, and will be deemed to have paid, $225.43, for this piece of property. Sec. 9957-c, Laws 1933, p. 440; Dougherty v. Gangloff, 239 Mo. l.c. 662; Shepperd v. Enright, 188 S.W. 186. (15) The sale of this property for taxes is not sufficient to shock the judicial conscience. Judge COOLEY in his Work on Taxation (3 Ed.), page 959, states the rule tersely as follows: "The insignificance of the price as compared with the value of the land sold will not defeat a tax sale; for, if it should, the power to collect revenue by this method will be futile." Any other ruling would undermine the sovereignty of the State. Martin v. Castle, 193 Mo. l.c. 195; Dougherty v. Gangloff, 239 Mo. l.c. 662; Shepperd v. Enright, 188 S.W. 186; Rogers v. Dent, 292 Mo. 576; Walker v. Mills, 210 Mo. 684. (16) Whatever rights, if any, the appellants may have had were barred by their laches in asserting same. Roby v. Smith, 261 Mo. 192. (17) No privity exists between the two or three heirs that claim to have seen the probate court about this matter, the two who claim to have inquired about the taxes at the office of Collector, and the remaining heirs of said Charles Broeker, and if there are any grounds for setting aside this sale on account of what the Probate Judge and the Collector told said parties, that ground would not avail the remaining heirs, who were certainly not misled thereby, there being no evidence that the heirs who saw the probate judge and collector represented the remaining heirs. 62 C.J., p. 561.
Respondent Campbell filed this suit, on February 24, 1938, against Charles N. and Frieda Daub, for possession of the following described real estate situated in St. Louis county, Missouri: Lot number 2 of the subdivision of the John Jones estate in section 4, township 44 north, range 5 east, containing 17.98 acres. On June 1, 1938, the following named persons filed a motion to be made parties defendants, which motion was granted. The parties thus made defendants were: Edward Broeker, Louisa Siebert (also spelled Seibert in the record), William Broeker, Laura Broeker, Arthur Meier, Oscar Meier, Louise Meier, Pauline Ellerbrecht, Ernest Broeker and Paul S. Limerick, curator of the estate of Carrie Broeker, a non compos mentis. These defendants and the defendants named in the petition filed an answer and a cross bill in which they asserted title to the lands, asked for the cancellation of a tax deed through which plaintiff claimed title and made a tender of all sums paid by plaintiff with interest for the tax deed. Upon a trial the court found the issues in favor of the plaintiff and entered a judgment for possession of the land, also a judgment for $300 as damages, and fixed the rental value of the land at $12.50 per month. The court found against the defendants on their cross bill. From that judgment defendants appealed.
The evidence disclosed the following facts: The defendants were the legal heirs at law of Charles Broeker, who died on January 9, 1917, and who owned the land here in question. The widow, Carrie Broeker, was adjudged a non compos mentis in the year 1922, and thereafter was confined in a state institution. Edward W. Terry was appointed her guardian. The defendants, Charles and Frieda Daub, nee Broeker, occupied the land in question for more than twenty years prior to the filing of this suit and paid a rental to the guardian of Carrie Broeker. Terry, the guardian, died on July 24, 1934. The record shows that in August, 1932, the guardian filed a settlement which showed a balance on hand of $291.67. In July, 1934, a settlement was filed which showed no balance. This settlement also disclosed a loss of $66.99 through the closing of a bank. The guardian's wife filed an application to be appointed guardian in all of the estates in which her husband had been guardian. There were a number of these. She did not qualify in the Carrie Broeker estate because the assets had all been spent. After the death of Terry, Laura M. Broeker and two of her brothers inquired at the probate court about the estate of their mother. They received the information that Mrs. Terry had been appointed guardian in lieu of her husband. Later that year, 1934, these parties went to the collector's office to see if there were any taxes due on the property here in question. They were told that all taxes had been paid, or that no taxes appeared to be unpaid. In March, 1937, the plaintiff in this case went to the farm and showed the defendants, Charles and Frieda Daub, a tax deed and demanded possession of the place. His request was refused and in February, 1938, plaintiff filed this suit. The tax deed, purporting to convey title to plaintiff, was executed pursuant to a sale for delinquent taxes for the year 1929. The sale was had on November 8, 1934. The certificate of purchase was issued in the name of Helen Hauhart and the price paid was $18.25. Plaintiff claimed to have purchased this certificate for $19.71. He testified that his total outlay, being the payment of taxes on the land, including interest, was $262.24. The only evidence of the value of the land was that it was worth about $2500.00. The defendants testified that [685] they never heard of the tax sale until plaintiff claimed possession of the land. The defendants offered to refund to plaintiff, with interest, all sums paid by him. This offer was refused and the tender was kept alive.
The defendants in their cross bill attack the tax sale and deed upon a number of grounds. These points were briefed here on appeal. We are of the opinion that the tax sale constituted a fraud upon these defendants. They had no reason to believe that the taxes, at least up to the year 1934, had not been paid. It was the duty of the guardian to pay the taxes, since he was representing the owner of the homestead. He had been paying taxes on the land for a number of years. In 1932 the guardian had on hand $291.67. In 1934 his settlement showed that he had lost $66.99 of the estate's money in a closed bank. The guardian, therefore, had sufficient funds on hand to have paid all the taxes due, including the year 1934. When he died defendants made inquiry, and were informed the taxes had been paid. The evidence clearly showed that the defendants exercised ordinary diligence in the protection of their property. The name "Broeker" appeared in the tax books as "Brocker." That may have accounted for the misinformation given them. That, however, was no fault of the defendants. The land was described in the notice of sale as, "Jones Est. lot 2, 17.97 Acres, Sec. 4." The correct description was lot 2 of the subdivision of the John Jones Estate. The meager description given in the notice was no fault of the defendants. The plaintiff, who purchased the property, owned the adjoining land. He was acquainted with the defendants and knew that the widow was under guardianship. The record showed that he said not a word to the occupants of the land, or to any of the defendants, about the tax sale, until he thought the time in which the land could be redeemed had expired. It was not his duty to notify the defendants, but a person who seeks to enrich himself at his neighbor's expense, under circumstances as appeared in this case, stands in poor grace before a court of justice. Plaintiff in his brief in this court stated that the dower and quarantine right of Carrie Broeker expired in 1927; that her homestead right did not include all of the land but only property of the value of $1500.00. If that be true, then under Section 9954a of the Jones-Munger Act, Laws of 1933, page 434, plaintiff was entitled to possession of the land one year after the sale took place, yet, he made no claim until after two years had elapsed. The reason for the delay is apparent. Yet plaintiff in his brief accuses the defendants of laches because the defendants did not file suit against him until he sued for possession a year after making demand. The price paid for the land by the plaintiff was shockingly inadequate. It was worth at least $2,000.00 or more. Plaintiff conceded it was worth more than $1500.00. The sale price was $18.25, being the exact amount of the tax due. The failure to pay the tax was caused through the negligence of the guardian appointed by a state court. The officials, whose duty it was to collect the taxes, misinformed the defendants as to the status of the tax books. The State sold the land for nonpayment of taxes through an ex parte proceeding. The defendants received no personal notice. The purchaser, a neighbor in the sense that he owned land adjoining the defendants, kept the fact that a sale had been had a secret until the two years provided for redemption had elapsed.
Under the facts proven in this case the trial court should have by its decree set aside the tax deed on the ground that the sale constituted a fraud upon these defendants. The following cases support this conclusion: Ellis v. Powell, 117 S.W.2d 225; Lindsay v. City of St. Louis, 345 Mo. 1141, 139 S.W.2d 906.
The judgment of the trial court must therefore be reversed with directions to that court to enter a decree for the defendants, cancelling and holding for naught the tax deed through which plaintiff claimed title; plaintiff to be paid the amount he has expended in the payment of taxes with interest to the date the tender was made to him; plaintiff to pay the cost of this case. It is so ordered. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.