Wellshear v. Kelley

69 Mo. 343

• Court: Supreme Court of Missouri
• Decided: April 15, 1879
• Status: Published

Opinion

Henry, J.

Mary A. Henry, a non-resident of the State, owned the northwest quarter of section 24, in township 24, of range 28, in Barry county.

At the March term, 1878, of the Barry circuit cour^ a suit was instituted against her at the relation of the State to the use of J. W. Lecompte, collector of the revenue of said county, to subject said land to sale for payment of back taxes for the years 1870, 1871, 1872, 1873, 1874, 1875 and 1876, amounting in the aggregate to $78.68. An order of publication was made against her, which was duly pub-listed in the Cassville Democrat, a newspaper published in said countj", notifying Mary A. Henry that plaintiff had commenced suit against her in the Barry circuit court, by petition, the object and general nature of which was to obtain judgment against her for th'e taxes, interest and costs due on said land (describing it) for the years aforesaid, (naming them,) and the aggregate amount of taxes due on said land, $78.68, and that unless she should be and appear at said court, at the next term thereof, to be begun and held at the court house in the town of Cassville, in said county, on the 14th day of March, 1878, and, on or before the third day of said term, answer or plead to the petition in said cause, the same would be taken as confessed and judgment be rendered accordingly. She did not appear at said term, and judgment by default was rendered in favor of plaintiff, for said taxes, interest and costs, and that the said real estate, or so much thereof as might be necessary, be sold to satisfy the same. Under a special execution issued by the clerk of said court on the 17th day of May, 1878, said land was, by the sheriff of said county, on the 10th day of September, 1878, sold to John W. Wellshear for the sum of $8.00. Due notice was given of the sale by the sheriff.

Amos N. Kelly was in possession of the premises, and this suit was instituted by Wellshear, purchaser under said execution, against Kelly to recover the same. Kelly made defense to the suit, but a judgment was rendered against him, from which he has appealed to this court. He insists that the petition in the case of the State ex rel., &c., v. Mary A. Henry, did not state a cause of action, because it was not alleged in the petition that the land therein described had been returned delinquent, or had been forfeited to the State; because it was not alleged that the county clerk,within sixty days after the taking effect of the act of 1877, had made out a back tax book, and delivered it to the collector of the county, and that said tract of land was contained in said back tax hook and remained unredeemed on the 1st day of January, 1878 ; because it was not alleged that the suit was against the owner of the land.

, taxes: pleading,

Section 1 of the act to provide for the .collection of delinquent taxes, provides that “the taxes due and unpaid on any real estate which has heretofore been returned delinquent, and which has not been forfeited to the State, and the taxes due and unpaid on any real estate which has been forfeited to the State for the non-payment of such taxes, shall be deemed and held to be back taxes,” &e. A petition should allege that the land had been returned delinquent, or had been forfeited to the State. This petition in the case against Mary A. Henry was defective, and a demurrer to it might have been sustained!, but, although not directly and formally averred, it is sufficiently stated to be good after a verdict, that the land had been returned delinquent. The following is a portion of said petition: “That all of said amounts above set out, together with all interest, commissions and costs thereon accruing under and by virtue of the statutes in such cases made and provided, remain due and unpaid ; that defendant is the owner of said real estate, and has wholly failed, neglected and refused to pay, and still fails, neglects and refuses so to do. Plaintiff further states, that under and by virtue of the statutes, &c., all taxes assessed and levied on each respective tract of said real estate, became aud are a lien on each of said tracts to the amount of the taxes, &c.; that by virtue of section 5 of an act of the General Assembly of the State of Missouri, in regard to delinquent taxes, entitled ‘ An act to provide for the collection of delinquent taxes and taxes due on real estate forfeited to the State, and repealing section 184 of an act entitled ‘ An act concerning the assessment and collection of the revenue,’ approved March 30th, 1872,’ approved April 12th, 1877, the aforesaid collector made an agreement in writing with and employed A. B. Greenwood and Plummer & Wear, Esqs., as attorneys in prosecuting the foregoing suit, and all others for delinquent taxes in said Barry county — said attorneys to receive as their fees therefor ten per centum on the amount collected and paid into the treasury; which said agreement between said collector and said attorneys was approved by the county court of said county, by an order of record entered the 4th day of January, 1878, the said per centupi to be taxed as costs in the suit and collected as other costs.

2. judgment not COLLATERALLY assailable.

The failure to state in the petition that the county clerk had made out a back tax book, and delivered it to the collector, is not a defect of which even . . Mary A. Henry, m a collateral proceeeding, could have taken advantage after the judgment against her. All of the objections made by defendant to the petition in the suit against Mary A. TIenry, are such as only she could have complained of, if she had appeared and defended the action. If the court had jurisdiction of the subject matter of the suit., the proceedings and the judgment thereon stand upon the same ground as the proceedings and judgment in a suit between individuals. There is no principle which requires the application of different rules to test the validity of a judgment in a cause between the State and an individual from those which apply to a judgment rendered in a suit between individuals. The same presumptions in favor of the judgment are indulged in the one case as in the other. Although a statement may be defective, yet, if it appear after the verdict, that it could not have been given, or that a judgment could not have been rendered without proof of the matter omitted, the defect will be cured by the statute. State ex rel. v. The County Court of Sullivan Co., 51 Mo. 522. “ It is true if the record is radically defective — if it shows that there was no obligation, no legal indebtedness, as that judgment was rendered upon a nudum pactum, it is a substantial error. But the mere omission to set out a fact, as the consideration, or the whole of the consideration, on account of which omission a demurrer could have been maintained or any fact that must have been found by a jury, is cured by the verdict.” Kercheval v. King, 44 Mo. 404. This is the doctrine held where there is a direct proceeding to reverse the judgment, and it applies with much greater force when a collateral attack is made upon a judgment of a court of general jurisdiction. A judgment may be reversed upon appeal or writ of error, for reasons which would be of no force in an attack upon the judgment in a collateral proceeding.

3- — -yjurisdiccourt-

Appellant’s counsel contends that the circuit court had no jurisdiction of the cause of the State ex rel. v. Henry. Circuit courts have “exclusive original jurisdiction in all civil cases not otherwise provided for,” &c. Art. 6, § 22, Const. By section 183 of the act of 1872, the county courts of the several counties had .original jurisdiction in all suits to enforce the lien created by that act for taxes due and charged upon real estate. The sections of that act as published, beginning with the 56th, each has two numbers, as follows: Sec. 56 [55]; 57 [56]. The act of 1877 repeals section 184, and continues in force all provisions of sections 178, 179, 180, 181 and 182, not inconsistent therewith. The double numbering of the sections of the act 1872, was the work of the publisher; and the numbers within brackets were not in the act as enrolled, and the reference to the sections by numbers in the act of 1877, is to the sections as numbered in the original. Section 183 of the act of 1872, was expressly repealed by the act of 1877, and that is the section which prescribed the proceeding in the county court to obtain a judgment against delinquent lands. Counsel for appellant bases his argument on this point upon the erroneous assumption that the numbers of the sections of the act of 1872, within backets, are those referred to in the act of 1877. Section 183 of the act of 1872, which conferred original jurisdiction upon the county court in suits commenced and prosecuted to enforce the lien created by that act for taxes due, was repealed by section 20 of the act of 1877, which expressly repealed “ all acts and parts of acts inconsistent” therewith. A reasonable construction of the act of 1877, in connection with the constitutional provision before quoted, leaves no doubt of the jurisdiction of the circuit court to hear and determine suits for back taxes.

4 _. jUdg. S“iy aslaitabie'i limitatioiis.

A.ppellant contends that upon the face of the petition in the suit against Mary A. Henry, it appeared that a portion of the taxes sued for and embraced in the judgment, were barred by the statute pmitations, and that the judgment is, therefore, void'. It was for Mary A. Henry, the defendant in that suit, to make that defense there, but neither she nor any one else can make it in this collateral proceeding. We do not determine whether the statute of limitations can be pleaded against the State for back taxes or not. That question is not necessarily before us, and what might be said on that subject in this case would be but obiter dicta. It is sufficient here to say, that whether it would be a defense or not against claims of the State for back taxes, this defendant cannot avail himself of that defense. He is not sued for back taxes.

5 _. presumpsheriff™ proceedingS'

It is further insisted that in proceedings to enforce the collection of' taxes, there are no presumptions in favor of the validity of the proceedings or the power of the officer. Many cases are recited from our reports to support that proposition, but they were either cases in which the collector or other officer, without a judgment of any court, was authorized to sell land for taxes due and unpaid, or in which the judgment under which the sale was made, was rendered by a court exercising a special and limited, and not a general jurisdiction. In Lagroue v. Rains, 48 Mo. 538, cited and relied upon by counsel for appellant, the court said, Wagner J.: “ The proposition maybe laid down as undoubted, that the advertisement in the time and manner prescribed by lalw is a prerequisite to the validity of a tax title, and this principle is not altered by the provision in our law requiring judgment to be entered up in the county court. Before the adoption of the present law, the officer derived his power to sell in part, from the advertisement. Now the court obtains its authority to proceed in part from the. same source. Fower is conferred upon the court to be exercised on certain defined and limited contingencies; and these contingencies must have happened and the conditions on which it can act, must have been performed before its act can be valid. Its authority does not attach until the law has been pursued and complied with. ’ The notice is the indispensable prerequisite, and without it the court has no jurisdiction in the premises.” In Abbott v. Doling, 49 Mo. 304, Adams, J., said : “A sale by a collector for taxes cannot be assimilated to a sale by a sheriff under judicial process, issued by a competent court. The sheriff’s proceedings are subject to the supervision of the court, and the court, whose process he abuses, is the proper tribunal to apply the remedy. The purchaser, under a judicial sale, looks to the judgment, execution, levy and sheriff’s deed. If they are right all other questions are between the parties to the judgment and the sheriff.”

6. -: practice,

The court did not err in rendering a judgment at the first term. The statute expressly provides that the first shall be the trial term.

7. -: process,

The notice to Mary A. Henry was sufficient to sustain the judgment rendered in that case, when brought in ques-tion, as here, collaterally. Freeman v. Thompson, 53 Mo. 183; Kane v. McCown, 55 Mo. 181. "What might have been held as to the sufficiency of the notice if she had taken proper steps to bring the question here by appeal or writ of error, it is unnecessary to determine.

8 back tax act, constitutional,

The position that the act of 1877 is retrospective in its operation, and, therefore, unconstitutional, we think untenable. It simply provides a different remedy from that which the State, at the date of its approval, had for the collection of back taxes, and of the right of the Legislature to change the remedy in such a case as this there can be no doubt. Cooley’s Const. Lim., 361; Porter v. Marriner, 50 Mo. 367. Judge Cooley says : “As a general rule, every State has complete control over the remedies which it offers to suitors in its couiffs. It may abolish one class of courts and create another. It may give a new and additional remedy for a right already in existence. And it may abolish old remedies and substitute new.”

9. execution sale eor taxes : ejectment

The neglect of the sheriff to sell the land by its smallest legal subdivisions, did not invalidate the sale. Hicks v. Perry, 7 Mo. 346 ; Rector v. Hartt, 8 Mo. 448. Mary A. Henry, on motion, might have set it aside for the failure of the sheriff to comply with the direction of the statute. But the defendant here is in no position to assail it on that ground. It was a personal privilege of Mary A. Henry, and as she did not complain of the sheriff’s action then, it is now too late even for her to be heard on the subject.

Many other points are made in the brief of appellant’s counsel, which we do not deem it important to notice, believing that all of them worthy of serious consideration have been adverted to. All concurring, the judgment is affirmed.

Affirmed.