Opinion
No. 42654.
April 14, 1952. Rehearing Denied May 12, 1952.
APPEAL FROM THE CIRCUIT COURT, JASPER COUNTY, WALTER E. BAILEY, J.
R. H. Davis and A. H. Garner, Joplin, for appellants, Theodore Arne and Edward Arne.
Stanley P. Clay, Joplin, for respondent.
Defendants Theodore Arne and Edward Arne appeal from a judgment of the Circuit Court of Jasper County adjudging title to certain real estate in Joplin, Missouri, in plaintiff.
This action was instituted in 1939 and came to this court on a prior appeal. (Edward Arne was not then a party to the suit. All of the then defendants, except Theodore Arne, had defaulted in the trial court and since then have not been parties to the case.) The decision on that appeal held void a tax deed under which defendant Theodore Arne claimed title and remanded the cause to the trial court for assessment of the value of improvements and the amount of taxes paid by said defendant and ordering that the amount so found to be due defendant be adjudged an equitable lien against the property. 348 Mo. 790, 155 S.W.2d 155. Reference is made to the opinion in that case for a more detailed statement of the facts and issues there decided.
After remand to the trial court in 1941, the case remained undisposed of until the second trial in May, 1950, the delay, it is said, being due to the War. Defendant, Theodore Arne remained in possession of the property and collected rents and made improvements thereon until 1944, when a receiver was appointed. Thereafter the receiver collected the rents and paid certain expenses. The 1945 state and county taxes went unpaid. Without leave of court, the property was sold by the collector in foreclosure thereof in November, 1946. Defendant Theodore Arne and the subsequently intervening defendant, Edward Arne, became the purchasers, and on December 9, 1948, received a collector's tax deed to the property, reciting a consideration of $17.46 as the amount "returned delinquent in the name of Theodore Arne * * *."
Defendant Theodore Arne and his brother. the intervening defendant Edward Arne, thereupon filed a joint "amended answer and cross-petition" in which they alleged: (1) That the decision of this court on the first appeal did not adjudge that plaintiff was the owner of the property, but only that the tax deed under which defendant Theodore Arne claimed title was void because of an insufficient affidavit attached to the petition for foreclosure of the tax lien as a basis for an order of constructive service on the defendants in the tax suit; that the purported affidavit set forth in the record on appeal and upon which the court based its finding that the judgment in foreclosure in the tax suit was invalid was not a true copy of the affidavit actually made; and that, therefore, the opinion of this court was based upon a false and fraudulent record presented to it on that, the first appeal; (2) the value of the improvements made and taxes paid by Theodore Arne on the property; and (3) their joint claim of title under the second tax deed, and that whatever right plaintiff had to have the second deed annulled was barred by "Section 1177, R.S. 1939, and Section — 1939".
Plaintiff's reply to the "amended answer and cross-petition" was: (1) That the decision on the first appeal was res judicata of the invalidity of the first tax deed; (2) that the second tax deed was void for the reason that the property was in custody of the court as property in receivership and not subject to sale for taxes; and (3) defenses to some of the claims for expenditures made by defendants.
The trial court held that the decision of this court on the first appeal was res judicata as to the first tax deed and that the only issues before the court were: (1) The validity of the second tax deed and (2) the value of the improvements and the other allowable expenses of defendant Theodore Arne. It did, however, receive in evidence the affidavit which defendants contended was falsely copied into the record on the first appeal. That affidavit, as shown by the record on this appeal, is as follows:
"STATE OF MISSOURI ss County of Jasper
Frank W. Bair, Collector of the Revenue, being duly sworn, declares that the facts stated in the foregoing petition are true and correct according to his best knowledge and belief.
Frank W. Bair /s/ G. E. Crocker, D.C. Collector, Jasper County, Missouri
Subscribed and sworn to before me this 29th day of March, 1933.
/s/ Geo. E. Masters Clerk Circuit Court, Jasper County, Missouri
/s/ M. M. Plummer D.C."
The receiver testified he never received any notice of the taxes and overlooked the fact, if it was a fact, that he was supposed to pay them; that defendants at one time asked him to give them a check for taxes, but his counsel advised him not to do so; that he at all times had sufficient funds on hand to pay them; and that he never knew the property was sold for taxes.
The trial court cast up the amount of the rentals received by defendant Theodore Arne and the receiver, the taxes and other expenses paid, the value of the improvements, and awarded judgment for the net amount. No complaint is made of this accounting and the judgment rendered in accordance therewith.
The trial court also found that the second tax sale and the deed executed and delivered to defendants pursuant thereto were void for the reason that the property was at all those times in custodia legis as property in receivership and was not subject to sale for taxes. Judgment was rendered declaring the deed void; that the statute of limitations, even if properly pleaded, — the trial court held it was not — could not be invoked against plaintiff; that defendants had no right, title, interest or claim in or to said property; and that plaintiff was the fee simple owner thereof.
For the reasons hereinafter stated we have concluded the judgment should be affirmed.
It is true that on the first appeal this court did not expressly declare that plaintiff was the owner of the property, but it did say the tax deed under which Theodore Arne then claimed title was void and remanded the cause for the sole purpose of having the trial court ascertain the taxes paid by defendant Arne and the "value, if any, of improvements" and to declare an equitable lien therefor. 348 Mo. 790, 155 S.W.2d 155. In so finding and ordering, the claim of title asserted by Theodore Arne was adjudged adversely to him. The mandate stated, in part: "* * * and that the said appellant [plaintiff] be restored to all things which she has lost by reason of the said judgment. * * * that the said cause be remanded * * * for further proceedings to be had therein, in conformity with the opinion of this Court * * *." The decision and mandate in that appeal was res judicata of the invalidity of the first tax deed and became the law of the case on that issue, Fiene v. Kirchoff, 176 Mo. 516, 75 S.W. 608, and the trial court was bound to follow it, DeMayo v. Lyons, Mo.Sup., 243 S.W.2d 967, 970.
The discrepancy between the affidavit attached to the petition for foreclosure as set forth in the abstract of the record that came to this court on the first appeal (and copied in that opinion) and the affidavit introduced in evidence at the last trial, even if the discrepancy may properly be noted, is immaterial. The only difference is (1) the name of the person shown as signing the affidavit as deputy collector on the first appeal was "Geo. W. Crocker", whereas, in this record it is shown as "G. E. Crocker"; and (2) the date on the affidavit in the first appeal is "18th day of March, 1933", whereas, on this appeal the date is shown "29th day of March, 1933". The affidavit considered on the first appeal was not held insufficient on any ground that this discrepancy would affect, but because: "The affidavit [on the first appeal], although stating it was made by the collector, shows on its face that his name was signed thereto by some other person, purporting to sign for him and not for himself, and who was not shown to have himself been sworn or to have made or intended to make the oath." The same thing is also true of the affidavit in evidence on this appeal.
The property involved in this case was placed in the hands of a receiver on December 19, 1944. The receivership continued up until the time of the last trial and, presumably, still continues. A tax collector cannot maintain an independent action to enforce the collection of taxes assessed against property in receivership of effect collection by sale thereof without leave of the court having jurisdiction of the property. The customary procedure in such cases is by intervention of the person charged with the duty of collection in the cause in which the property is being administered. State ex rel. and to Use of Hibbs, County Treasurer, v. McGee, 328 Mo. 1176, 44 S.W.2d 36, 39, and cases therein cited; Prince George's County Commissioners v. Clarke, 36 Md. 206; Witt v. Jones, 106 Okl. 227, 233 P. 722, 39 A.L.R. 1411.
Defendant Theodore Arne (and his co-defendant brother, Edward Arne, in privity with him) could not flout the receivership by undertaking to obtain title to the property by letting it be sold for taxes and then obtaining a collector's deed thereto. Colburn v. Yantis, 176 Mo. 670, 683, 75 S.W. 653; Ex parte Devoy, 208 Mo.App. 550, 236 S.W. 1070, 1072. They could have demanded that the receiver pay the taxes or have applied to the court for an order upon him to do so. Witt v. Jones, supra. In such cases, the court, as the representative of the sovereignty of the State, will make due provision for payment of the taxes as a prior claim. State ex rel. and to Use of Hibbs v. McGee, supra.
It is clear that no applicable statute of limitation was pleaded. The statutes pleaded are "Section 1177, R.S. 1939, and Section — 1939". "Section 1177, R.S. 1939" deals with bills of exceptions. "Section — 1939" is meaningless. But, in any event, a statute of limitation would not be applicable under the facts in this case. The court was simply holding in effect that the collector could not sell and defendants could not acquire title to property held in receivership, without first obtaining leave of court so to do.
The judgment is affirmed.
All concur.