Voights v. Hart , 285 Mo. 102 ( 1920 )

Appeal from the Circuit Court of Jackson County. Petition filed January 30, 1918, by Dietrich Fadler, and he having died before the cause was tried, it was revived in the name of respondents, as trustee and executor under his will. The object of the petition is to cancel and set aside certain certificates of purchase and a city collector's tax deed to Lots 236 and 237 in Block 17 in McGee's Addition to Kansas City, owned by said Fadler. The lots were sold by the collector for non-payment of the park maintenance and boulevard assessments of the South Park District for the year 1911, and bid in by the city, and the certificates of purchase afterwards, on January 9, 1918, assigned to defendant, B.L. Hart, to whom a tax deed was issued on said date and recorded in the office of the Recorder of Deeds, January 10, 1918. There are a number of grounds in the petition attacking the validity of the tax sale, and also the validity of the certificates of purchase and tax deed, as void on their face, as well as for matters not so appearing, which will be mentioned in the course of the opinion, as far as necessary for the disposition of the case.

The prayer of the position is that said certificates and tax deed be declared void and canceled to remove the same as a cloud on plaintiffs' title, and that the court try and determine the title of plaintiffs and of defendants, and define and adjudge the title and interest of plaintiffs and defendants, and for general relief.

The answer of defendants admits the issue of the certificates of purchase and tax deed, sets out the resolution of the park board and city council levying a special assessment for the purpose of maintaining, repairing, etc., parks, boulevards, etc., in the South Park District for the year 1911; and also an ordinance, approved April 25, 1911, providing for the payment and collection of said special assessment, which said ordinance provided "that the laws and ordinances governing the entering, extending, payment and collection, and the sale for non-payment of general taxes of the city shall, as far as practicable, govern the entering, extending and collection and the sale for non-payment of the special assessment hereby levied; . . . and provided further, that if the sale of any land to enforce the collection of this assessment is contrary to the public policy or laws of this State, then the amount, etc., may be collected by suit prescribed by Section 26, Article VIII of the City Charter."

The answer further alleged the several steps taken by the city in relation to the sale and issue of the certificates of purchase and the tax deed and the recording thereof. The answer further alleged that after the assignment of said certificates and the issue of the tax deed, plaintiff, Fadler, paid no taxes on said property, but the defendant, B.L. Hart, after obtaining his tax deed, paid all the city taxes on said property for the years 1913 to 1916, which, including said park and boulevard maintenance tax for the year 1911, amounted to $1425. That after November 14, 1911, said Fadler never paid nor offered to pay any taxes, and never offered to redeem said property from tax sale, except by the institution of this suit on January 30, 1918. That by reason of the premises, said Fadler was guilty of laches and is barred and estopped from asserting any right to said property or redeeming the same, and that said defendant, by virtue of such tax sale and his tax deed, is the absolute owner of said lot. Wherefore, the defendants pray that the plaintiffs' petition and bill be dismissed.

The reply traversed the new matter of the answer.

At the trial, there was no question raised as to the validity of the special assessment for park and boulevard taxes for the year 1911 for which the property was sold. The certificates of purchase were introduced in evidence, both dated January 5, 1912, and recorded May 2, 1912; one showing that said Lot 236 was sold for $20.40 to Kansas City, and the other, Lot 237, sold to said city for $17.87. These certificates were in precisely the same language, except one related to Lot 236 and the other to Lot 237. Neither recited that the property was sold for the park and boulevard assessment of 1911, or special assessments of any kind, but followed the form for certificates of purchase of land sold for general city taxes. The treasurer or collector's deed which defendant, B.L. Hart, received and under which he claims title, omitting the acknowledgment, was as follows.

"Know all men by these presents, that, whereas, the following described real property, viz.: Lot 236 Block 17 McGee's Add. Lot 237 Block 17 McGee's Add. situate in Kansas City, in the County of Jackson, and State of Missouri, was subject to taxation for the year 1911; and whereas, the taxes assessed upon the said real property for the year aforesaid remained due and unpaid at the date of the sale hereinafter mentioned; and, whereas, the City Treasurer of said Kansas City, did on the 14th day of November, 1911, by virtue of the authority in him vested by law, at the sale begun and publicly held on the first Monday of November, 1911, the first day on which the annual tax sale began and continued to and including said first mentioned day, expose to public sale at the office of the City Treasurer in Kansas City aforesaid, between the hours of ten o'clock in the forenoon and five o'clock in the afternoon, in conformity with all the requirements of the law in such case made and provided, the real property above described, for the payment of taxes penalty and costs then due and unpaid upon said real property. And whereas, at the place aforesaid Kansas City of the County of Jackson and State of Missouri having offered to pay the sum of $38.27 being the whole amount of taxes, penalty and costs then due and remaining unpaid on said real property for Lot 236, Block 17, McGee's Add. Lot 237, Block 17, McGee's Add. and the payment of said sum having been by it made to said city treasurer, the said property was stricken off to it at that price. And, whereas, the said Kansas City did, on the 9th day of January, 1918, duly assign the certificate of purchase of the property as aforesaid and all its right, title and interest to and in said real property to B.L. Hart of the County of Jackson and State of Missouri; and whereas five years have elapsed since the first day on which the annual tax sale began and the said property has not been redeemed therefrom, as provided by law; and, whereas, the City Treasurer of Kansas City aforesaid, did, at least four months before the expiration of the time limited for redeeming said real property, publish a notice as required by the law in such case made and provided, that unless said real property was redeemed on or before the day limited therefor, it would be conveyed to the purchaser or his heirs or assigns.

"Now, therefore, I, Harry E. Barker, City Treasurer of Kansas City, county and state aforesaid, for and in consideration of the sum of $39.27 taxes, penalty and costs due on said real property for the year 1911 to the City Treasurer of said Kansas City, paid as aforesaid, and by virtue of the law in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said B.L. Hart, his heirs and assigns the real property last hereinbefore described, to have and to hold unto him the said B.L. Hart, his heirs and assigns forever.

"Subject however to all rights of redemption provided by law.

"In witness whereof, I, Harry E. Barker, City Treasurer of Kansas City, as aforesaid, have hereunto subscribed my name and affixed the corporate seal of Kansas City, this 9th day of January, 1918.

"(Rev. $50) Harry E. Barker, "(L.S. City Treasurer of Kansas City."

Ernest Forbes, for plaintiffs, testified: That he was redemption clerk in the City Auditor's Office; that the property was sold for said park and boulevard assessment; that there were no records in that office showing that the city paid anything for either of the lots in question at the tax sale involved, and that the city never pays the bid it makes for property at tax sales; it simply bids in the property and later acquires the amount of the taxes by assignment of the certificates of redemption.

Plaintiffs' testimony further showed that Dietrich Fadler, the owner of the lots, died in February, 1918. That at his death he was 90 or 91 years old. That he was a bachelor. That he was never away from the property for four or five years before his death. That he did not pay the taxes, because a young lawyer told him that the law under which the taxes were levied he thought was unconstitutional, and it was unjust, and, therefore, he did not think he ought to pay them.

Plaintiffs' counsel, in open court, renewed their offer to reimburse the defendant, B.L. Hart, on account of outlays, the same as in the petition.

It was admitted by defendants that the property was worth $50,000 at all times mentioned in the petition.

At the close of plaintiffs' testimony, defendants offered and the court refused a declaration to the effect that the plaintiffs were not entitled to recover.

The defendants introduced the resolution of the park board and resolution and ordinance of the city relating to the levy and collection of the park and boulevard maintenance taxes for 1911, which were as stated in the answer.

Defendants further showed that on January 9, 1916, they procured certificates of purchase by assignment from the city on account of the sale of said property for taxes for the years 1913-1916, inclusive.

In rebuttal, the plaintiffs introduced in evidence the certificates of the city auditor, showing the payment of the sum of $1437.96 by them to said city in redemption of said lots from the tax sales thereof for the years 1913, '14, '15, '16, '17. Plaintiffs also showed that they had paid into court on October 22, 1918, the sum of $100, as a special deposit in the case.

The court found the issues for the plaintiffs and rendered judgment as prayed in the petition, and ordered that out of the money deposited in court, the defendant, B.L. Hart, be paid $85, being the amount for which the tax sale was made, including interest thereon at the rate of twelve per cent per annum from November 14, 1911, to the date of the decree.

Being unsuccessful in moving for a new trial and in arrest of judgment, the defendants appealed to this court.

I. (a) The first charge in the petition which we shall consider, is that the tax deed is void on its face, because it shows both lots were sold as one tract for the lump sum of $38.27 and not sold separately for the taxesSale in delinquent upon each, as required by the charter of theSolido. city. The deed recites that: "Whereas, Kansas City . . . having offered to pay the sum of $38.27, being the whole amount of taxes, penalty and costs then due and remaining unpaid on said real property for Lot 236, Block 17, McGee's Add. Lot 237, Block 17, McGee's Add., and the payment of said sum having been by it made to said city treasurer, the said property was stricken off to it at that price." It is plain enough that this is a clear recital that the city offered a lump sum of $38.27, the full amount of the taxes due on both lots for both lots, and both lots were stricken off to it at such lump sum. The form of the tax deed is prescribed by the present freeholders' Charter of Kansas City of 1909 (Sec. 40, Art. V). It is in precisely the same words as the form prescribed by the special legislative Charter of Kansas City of 1875 (Laws 1875, p. 237). The deed in this case follows the form literally, but the form literally was intended for a deed conveying but a single tract, and shows that the amount of the taxes on this single tract, and for which it is sold, shall be set out in the deed. While more than one tract may be included in the same deed (Sec. 39, Art. V, Charter of Kansas City, 1909) yet, in that event, the recitals of the deed should show the amount of the taxes delinquent on each tract, and that each tract was sold for the amount delinquent on it alone and notin solido for taxes delinquent on it and other property also, as in this case.

In Sullivan v. Donnell, 90 Mo. 282, BLACK, J., construing the form of the tax deed provided by the Charter of 1875, said, while the form might be applied to cases where the property was bid off by the city, "the tax deed will vary the form so as to state facts truly.'

In Bender v. Dungan, 99 Mo. 126, where the statute, Section 224 (Laws of 1872, p. 130), provided that a deed to real estate forfeited to the State for taxes should be made by the collector as near as may be in the form prescribed in the act, it was held that the form of deeds for such forfeited lands would "have to be added to, modified and altered in order to be adjusted to and embrace the requirements peculiar to section 224, under which deeds for forfeited lands are authorized."

In Allen v. Buckley, 94 Mo. 158, the court said, l.c. 160: "The deed shows upon its face that it includes six different tracts of land assessed to different persons, with the amount of the tax and judgment rendered against each tract. While it shows this, it fails to show that these tracts were each sold separately for the tax adjudged against it, and no other inference can be drawn from the deed than that all the tracts were sold together for the aggregate amount of tax, interest, cost, and penalty, against all the tracts. While it is provided by our statute that a purchaser may have as many tracts as he buys at a tax sale included in one deed, it also provides that each tract is only chargeable with the tax assessed against it. When more than one tract is included in the deed it should show, either expressly or by necessary implication, the sale of each tract separately for its own tax. For the reason, if for no other, that the deed does not show this, the court was justified in holding it to be invalid."

The same rule obtains in this case. Whether the different tracts belonged to the same or different owners, the charter required a sale of each lot separately for the taxes due on it. [Kansas City Charter, 1909, sec. 28, art. V.]

In State ex rel. v. Richardson, 21 Mo. 420, l.c. 421, the court said: "The law never contemplated that delinquent lands should be sold in the lump. A deed showing that lands were sold in this manner, could not be contradicted, and a purchaser would not be at liberty to prove that they were sold in the manner required, by law."

(b) Learned counsel for appellants, however, deny that, properly construed, the tax deed here in question on its face shows that both lots were sold for a lump sum, because said deed recites that the sale was made "in conformity with all the requirements of the law in such cases," from which recital it may be inferred that each lot was soldGeneral separately for the taxes due on it only. This generalRecital. recital was also required to be made by the form, and the inference from it that each lot was sold only for the taxes due on it is not sufficient. What the charter requires is an express or affirmative statement to that effect on the face of the deed. The inference from such general recital cannot be substituted for the specific recital on that subject required by the Charter. [Hopkins v. Scott, 86 Mo. 140; Sullivan v. Donnell, 90 Mo. l.c. 282-3.]

(c) Learned counsel for appellants cite the following cases in which it was held that a recital in a sheriff's deed for land sold under judgment and execution for taxes under the Back Tax Act, stating that several tracts were sold in solido for a lump sum, does not render such deed void: Shelton v.Non-Judicial Franklin, 224 Mo. 360; Rector v. Hartt, 8 Mo. 461;Sale. Bouldin v. Ewart, 63 Mo. 330; Wellshear v. Kelley, 69 Mo. 343; and other cases in this State. They were all cases of sales and deeds made by the sheriff under regular judicial proceedings, where a much more liberal construction of the acts and proceedings of officers is allowable than in a non-judicial sale for taxes, as in this case. Such sales and deeds, as we have before us, are always required to strictly conform to the provisions of the law in order to be of any validity. [Abbott v. Doling, 49 Mo. 302; Moore v. Harris, 91 Mo. l.c. 621; Gregg v. Jesberg, 113 Mo. l.c. 39; Meriwether v. Overly, 228 Mo. l.c. 235, and other cases cited supra.]

We hold, therefore, that the tax deed in suit is void on its face, for the reason that it shows the two lots were bid in by and struck off to the City for the lump sum of $38.27, and does not show that each lot was bid in and sold separately for the amount of the taxes and costs due on it.

II. The above authorities, holding that the statutory form of the deed must be modified, so as to tell the truth and fit the facts in the particular case, also sustain the charge in the petition that said tax deed was void, because it failed to state that the taxes for which the property was sold were special assessments levied by the park board and the citySpecial council for the maintenance and repair of parks andTaxes. boulevards. The charter itself does not authorize the collector to sell any property for such delinquent park and boulevard assessments, but does provide (Sec. 33, Art. XIII, Kansas City Charter, 1909): "Every such assessment shall be made and collected as provided by ordinance of the Common Council, and the Common Council shall have the power to provide penalties for the failure to pay such assessment when due and may provide for the sale of the property assessed to satisfy such assessment." In pursuance of this power, the council did pass the ordinance set up in the answer and quoted in our statement of the case, providing "that the laws and ordinances governing . . . the sale for non-payment of general taxes of the city shall as far aspracticable govern the . . . sale for non-payment of the special assessment hereby levied." Said ordinance further provided that if such sale to enforce such assessment "should be against the public policy or laws of the State," it should be collected by suit. Assuming that the ordinance was valid and sufficient to authorize a collector's sale and bidding in by the city, as in case of general city taxes (which is not necessary to decide), we hold, that the certificates of purchase and tax deed issued in pursuance of any such sale, in order to conform to the charter, as far as practicable, as required by said ordinance authorizing such sale, should, at least, state that such taxes were park and boulevard assessments and that the lots were sold in payment of the same by authority of the said ordinance. The tax deed in this case and the certificates of purchase, containing no such recitals, are, in our opinion, null and void.

III. But it is strenuously argued by appellants' learned counsel that the Charter of Kansas City, 1909, Sec. 41, Art. V. provides that in any suit concerning the rights of the grantee in a tax deed "executed substantially as provided in the precedingsection," the person claiming adversely to the tax title must prove that the taxes were paid before sale, or that the property was not subject to taxation, or that it had been redeemed or tender made, in accordance with the charter by theFacts to person having the right of redemption. TheseBe Proved. provisions of said Section 41 have no application in this case, because, as we have seen, the tax deed was not "executed substantially as provided in the precedingsection," to-wit, Section 40. [Sullivan v. Donnell, 90 Mo. l.c. 282.] In other words, we hold that the provisions of Section 41, above mentioned, apply only to cases where the tax deed is valid on its face, which is not the case here.

IV. Furthermore, the recitals as to the kind of taxes for which the property was sold in said tax deed, being in the form required by the Charter of 1909, which form was taken from the Charter of 1875, which authorized no sales by the cityGeneral treasurer under any circumstances except for delinquentTaxes. general city taxes, must be construed to refer to general city taxes, which the evidence shows were all paid in this case, and for which the property was not sold. For that reason also, said tax deed was void.

V. It is also contended by defendants that under said Section 41, the defendants should have had judgment for the amount they paid the city in taking up the certificates of purchase for the years 1913 to 1916, inclusive. This position isReimbursement. not well taken, because said Section 41 only authorizes the recovery by the person claiming under an invalid tax deed of the amount of all taxes, assessments, etc., "paid by the puchaser, his heirs or assigns, after the date of the certificate of purchase." Here, the defendants paid no taxes or assessments after the date of the certificates of purchase under which the tax deed was issued, but simply purchased certificates of purchase from the city for the years 1913 and 1916, inclusive. It was shown in evidence, that the plaintiffs redeemed from all such sales by paying the proper amount to the city auditor (which included interest at 12 per cent per annum) for defendants, as the holder of such certificates, as required by the city charter. The plaintiffs did pay into court the amount with interest, which the defendant, B.L. Hart, paid out for his certificate of purchase under the sale of 1911 and for his tax deed, which was all plaintiffs were obligated to pay into court or to the defendant, B.L. Hart, personally by said Section 41 of the Charter.

VII. It is also urged that a bill in equity cannot be maintained if the said tax deed is void upon its face, as, in such event, the plaintiffs have an adequate remedy at law. The bill shows that the plaintiffs were inVoid Deed: possession; therefore, they had no remedy bySuit in Equity. ejectment. It is well settled, however, that equity will cancel a tax deed, although it is void on its face as a cloud on the title. [Wilcox v. Phillips,260 Mo. 690; Pocoke v. Peterson, 256 Mo. 518.] Besides, the allegations of the petition, and the prayer for determination of title, brings this case within the provisions of Section 2535, Revised Statutes 1909, concerning suits to quiet title, which may be instituted by any person claiming title, whether in possession or not, against any other person claiming title, whether under a deed void on its face, or void, in fact, for any reason. We rule this point against appellants.

VIII. The defense of laches set up by defendants is also untenable. Dietrich Fadler did nothing to induce the defendant, B.L. Hart, to buy the property at the tax sale. His mere failure to pay taxes and redeem from the sale within five years,Laches. subjected him to the loss of his property, if the tax sale and deed were valid, but not, if they were void, as in this case. If laches could be imputed to the property owner for merely failing to redeem or allowing his property to be sold for taxes, he would lose the title to his property, whether such tax sales and deeds were void or valid, which it would hardly be contended is the law. The return of the principal with 12 per cent interest per annum on all sums paid out for taxes by the holder of the invalid tax deed, which the city charter required, and which was done by plaintiffs; is all that a court of conscience could require in such cases.

There are other reasons urged by the learned counsel for plaintiffs, in their bill and brief, why said tax sale and deed were void, which, however, it is not necessary for us to determine.

The judgment of the lower court was right and is affirmed.Brown and Ragland, CC., concur.