State ex rel. Rosenblatt v. Sargent

Bake well, J.,

delivered the opinion of the court.

This was a motion to set aside a sale made under execution issued upon a judgment in the above entitled cause, for back taxes. The motion, on hearing, was overruled.

The petition in the original proceeding was filed on September 3, 1879. Eleven defendants were charged as owners, of whom two are married women, whose husbands are made defendants. The petition is in the form usual in such cases, and seems to be sufficient. The property is said to be in the city of St. Louis, and is further described as follows: —

“No. 1. Lots 4, 5, 6, 7, iu city block of Bisley Addition, fronting twenty feet on Second Street, by one hundred and eight and five-twelfths feet deep. No. 2, lot 8, in same block, fronting twenty and seven-twelfths feet on Second Street, by one hundred and eight and five-twelfths feet deep. No. 3, lots 9, 10, 11, 12, in same block, fronting nineteen feet on Bisley Street, bjr a depth of eighty-five and three-twelfths feet. No. 4, lot 13, and the south part of lot 14, in same block, fronting twenty-six and six-twelfths feet on Risley Street, by eighty-five and three-twelfths feet deep.”

The claim is for back taxes of 1877, and is set out as follows: “In the aggregate, upon each of said lots or tracts described herein, as follows: Upon said real estate numbered 1, $302.40, — that is to say, $25 upon each of lots numbered 4, 5, and 6, and $226.80 upon lot numbered 6 ; and upon said real estate numbered 2, $26.04 ; and upon said real estate numbered 3, $49.28, — that is to say, $12.32 upon each of said lots ; and upon said real estate numbered 4, $17.08.”

Three of the defendants were personally served. One was served by copy; and as to the remaining defendants who were not found, there was an order of publication, which was duly complied with. This order and advertisement described the property as it was described in the petition. All the defendants made default; and, at the October term, 1880, there was judgment in favor of the plaintiff.

This form of the decree is as follows : The court finds that there is due upon the real estate (describing it as described in the petition) state, school, and city taxes for 1877 ; “ and that the amount of said taxes and interest is as follows, to wit: On each of said lots numbered 4 and 5, in paragraph numbered one herein, the sum of $33.75.” There is, then, a separate finding as to taxes against each lot in each paragraph, and that defendants are the owners thereof; and then, consideratum est, etc., “ that the sum of $33.76 be levied out of each of said lots 4 and 5, as described in paragraph number one herein, being the amount of said back taxes, and interest thereon from January 1, 1878, at one per centum per month ; ” and so on, a separate judgment being rendered against each lot in each paragraph. The decree then declares the judgment a first lien in favor of the state upon said real estate, and orders that the lien be enforced, and that said real estate, or so much thereof as maybe necessary to satisfy said judgment, interest, and costs, be sold according to the law regulating the sale of real estate under execution, and “that the costs be so distributed against each of said lots in proportion as the same bear to the whole amount of costs charged in this suit, and that a special fieri facias issue hereon.”

Execution was issued on February 10,1881, in accordance with the judgment. The property was duly advertised for sale in accordance with the description in the petition, decree, and execution, and was sold on March 15,1881, to Zachariah T. Yarnall. The property was sold in separate lots. Lot 4, for $170 ; lot 5, $175 ; lot 6, $660 lot 7, $220 ; lot 8, $90 ; lot 9, $175 , lot 10, $115 ; lot 11, $110 ; lot 12, $105 ; lot 13, and south part of lot 14, $180, — making a total of $2,000. The total amount for which judgment had been rendered being $529.01.

This execution was returnable to the April term ; and, on the fourth day of June of that term, the motion was filed to set aside the sale, by defendants Gazzam, Cochrane, and Phoebe Hunt, together with her husband, and Horner, her trustee, and by Muldoon and Sharpe, who were not defendants, but who claimed to be the parties in possession of the property.

The grounds alleged in. the motion are, that judgment and execution are irregular, illegal, and void; that the sheriff sold more property than he advertised, and more than the special judgment authorized, and that he sold without legal notice ; that no demand of payment was made before the levy; that the propei'ty was sacrificed for $2,000, whereas it was worth $40,000 ; and that ther whole property constituted one common improvement, to wit, a packing and slaughter-house ; and that defendants offer to pay to the purchaser his bid, and all interest and charges.

On the hearing of the motion no testimony was offered on the part of the purchaser. The only witness examined in support of the motion was Mr. Haeussler, a member of the firm of attorneys whose name is signed to the motion. He testified that the property was worth, in cash, $15,000, at the date of the sale; that he himself would have given $10,000 for a quit-claim deed to it, as a speculation, and taken his chances as to the title; and that he would have given the total amount of the judgment for any one of the lots. On cross-examination, Mr. Haeussler said in substance as follows ; we abbreviate to save space and time : The title to the property has been in litigation for many years. There were three suits and three claimants. I understand that these suits have been settled. I represent Muldoon and Sharpe, who have been in possession, packing pork on the property for six years, during two years.of which time the property was in the hands of a receiver of the United States Circuit Court. Afterwards Muldoon and Sharpe paid rent to Gazzam and Cochrane, as they did before the receiver’s time. Defendants Gazzam and Cochrane, Horner and the Hunts, are the landlords of Muldoon and Sharpe, and are represented in this application by their own counsel. I offered Yarnail $2,500 for the property for myself, Muldoon, and Sharpe, and declined to offer more. The title is badly mixed. It is such that a speculative Dutchman would not give more than $2,500 for, in its present condition. I am familiar with the title ; believe I would have a good title if I had defendant’s title. I would have been glad to get their title for $10,000. The back taxes on the property, besides those mentioned in the execution, amount to $2,500, for which suits are being brought.

An affidavit of Muldoon was offered, with an accompanying diagram. This affidavit is to the effect that the ten lots form a common improvement, used as a pork-packing house and hog run, the northern twelve feet being vacant; and that the improvements are two stories high, and worth $10,000. No one demanded the taxes of affiant or his firm. A lease from Mrs. Hunt’s trustee to Muldoon and Sharpe for one year from July, 1876, renewed for one year for the premises in question, was also put in evidence, and also a quit-claim deed from Mrs. Hunt, her husband, and her trustee, dated June, 1877, to Gazzam and Cochrane, of Pitts-burg, Pennsylvania, for the premises in question. There was no other evidence except a plat of the land.

The sale was a judicial sale, and entitled to all the presumptions attaching to such sales. Wellshear v. Kelly, 69 Mo. 343. There was no request to subdivide. Nor does it appear that further subdivision was practicable. The neglect of the sheriff to sell the land by its smallest subdivisions would not invalidate the sale. It is unnecessary to encumber this opinion' by repeating at length what has so recently been said by this court as to such sales. Sheehan v. Stackhouse, 10 Mo. App. 469; Brown v. Walker, 11 Mo. App. 226; Howard v. Stevenson, 11 Mo. App. 410. We may remark, however, in passing, that counsel for appellant has entirely misapprehended the case of Brown v. Walker. It is not held or said in that case, as counsel suggests in his brief, that on a judgment against two vacant lots, each of which is liable for only a part of the tax, both may be legally sold together : a single judgment against both the lots is, in that opinion, distinctly declared to be erroneous. It is held only, that the objection does not go to the jurisdiction, and that the fact cannot be shown in a proceeding in ejectment, by oral evidence, for the purpose of impeaching the judgment in the back-tax proceeding, and that the sheriff’s deed is not invalidated by mere irregularities in the proceedings in the suit that led to the sale.

We notice the vehemence of language with which counsel for appellant, in his brief and in other briefs in cases arising upon tax-sales, expresses his strong dissent from the views expressed and the results arrived at in these cases by this court and by the supreme court; but we find nothing in what is said in these cases that seems to warrant the conviction that he expresses, that recentlegislation, asinterpreted by the courts, is.leading to any “ confiscation ” of the property of the citizen. If by “ confiscation” counsel means merely the taking of property into the public treasury, all collection of taxes may be called confiscation. But the word is not commonly used in that sense. Though the taking of property, because the thing taken is required for public use, may sometimes be called confiscation, the word cannot be properly applied to the taking of property by the government to provide for the general wants, the protection of the public, and the support of the institutions of society. It ought not to be applied to a legitimate exercise of the powers of taxation.

And there seems to be nothing in the peculiar circumstances of the present case which makes it a glaring instance of abuse of power on the part of the government which, surely, may adopt effectual means to collect its revenue.

The owners of the property sold, had proper notice. Some of them were personally served. No one of them seems to have thought it expedient to redeem the property whilst it might have been redeemed. None of them appear to have attended the sale. The present proceeding was instituted in the trial court only by Mrs. Hunt and her husband and trustee, and two of the non-resident defendants ; whilst the only parties moving to set aside the sale who are represented by counsel here are Muldoon and Sharpe, who are merely lessees of Mrs. Hunt. The price paid was probably inadequate; but that is not alone sufficient ground for setting aside a judicial sale. There seems to be nothing in the contention that the description of the lots in the execution was such as would induce the belief that the sheriff would offer the lots in groups. They were grouped together evidently for facility of description alone.

The decree, which is followed in the advertisement and execution, directs that the real estate shall be sold, or so much thereof as may be necessary to satisfy the judgment, and interest and costs. But it is plain that this applies to each lot j and could not be misunderstood to mean that, when any lot or lots had brought the amount of the entire tax upon all the lots, the sale would be stopped. The judgment is a separate judgment against each lot. for its own burden of taxes, and this is what the law requires.

The property was assessed under the revenue law of 1872, which provides (Wag. Stats. 1167, sect. 49) that all lots in cities shall be arranged according to the number of the lot; that (sect. 54) each town lot shall be assessed separately in the manner (sect. 75) provided by the general provisions of the law. The law of 1872 further provided, (Acts 1872, p. 124, sect. 203), — and the same provision was in force at the time of this sale, — that “ each tract of land or lot shall be chargeable with its own taxes, no matter who is the owner nor in whose name it was assessed or advertised.”

The statute further provides (Acts 1877, p. 386, sect. 7 ; Bev. Stats., sect. 6836), that, “the judgment, if against the defendant, shall describe the land upon which taxes are found to be due ; shall state the amount of taxes and interest found to be due upon each tract or lot, and the year, or years, for which the same are due, up to the rendition thereof, and shall decree that the lien of the state shall be enforced, and that the real estate, or so much thereof as may be necessary to satisfy such judgment, interest, and costs, be sold, and a special fieri facias shall be issued thereon, which shall be executed as in other cases of special judgment and execution, and said judgment shall be a first lien upon said land.” In other cases of special execution, the sheriff is directed “ to divide the property, if susceptible of division, and to sell so much thereof as will be sufficient to satisfy the execution, unless the defendant in the execution shall desire the whole of any tract or lot of land to be sold together.” Rev. Stats., sect. 2368. The judgment in this case followed the law ; the execution followed the judgment; the property was not susceptible of further subdivision, nor was the sheriff asked to sell otherwise than as he actually sold.

It is, however, earnestly contended that, inasmuch as the sale of the three lots first offered brought enough to pay all the back taxes found to be due upon all the ten lots, when the sheriff had this money in his hands, the sale should have been stopped.

We need not now inquire whether where several lots belonging to joint defendants are offered for sale under a judgment for taxes, if one or two lots bring the amount due upon the whole series, the sheriff is bound, at the request of any one of the defendants, or of all of them, to stop the sale. That is not the question presented by this record. The question that we are to consider is this: Whether, in a proceeding to sell property under a judgment for back taxes, naming the several defendants as joint owners, if no one represents any defendant at the sale, and no application is made to the sheriff or to the collector in the matter, the sheriff must stop the sale when any number of lots sold has brought the total amount chargeable against the series; and whether, if this is not done, this is such an irregularity as ought to avoid the sale, and deprive the purchaser of his bargain, and put the state to another sale to collect its taxes, on application made at the return term of the writ by one of the several defendants beneficially interested in the property? And we think that this question must be answered in the negative.

It is true that it is held that a sale by a collector is of no validity if the taxes were in fact paid ; that a distress must not be excessive, and that a collector is liable in trespass if he sell upon his warrant a greater number of chattels than is sufficient to pay the tax-bill and costs. Scekins v. Goodale, 61 Me. 450; Care v. Forrest, 126 Mass. 127; Thompson v. Monnier, 4 Fost. 238. But the case before us is one of the sale of real estate in which each lot was chargeable with its own taxes, and the sheriff pursued his writ; and, so far as the rights of the purchaser at the judicial sale are concerned, it is held that the “ purchaser 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.” It is against the policy of the law lightly to set aside judicial sales of real estate; and such a course tends to the injury of the debtor class, by depreciating their property when brought to the sheriff’s hammer. It may be said that it was the duty of the collector to attend the sale, and, as soon as the sheriff had enough money in his hands by the sale of property which was sold as the property of the defendants, to look to the surplus after paying taxes on the lots sold, to pay the taxes which had been declared a lien upon the other lots. No one of the defendants, however, intimated any wish that this should be done; perhaps, some of them may have parted with their interest in the lots before the sale was made, and may have been unwilling that the surplus belonging to them after the sale of each lot should be applied in extinguishing a special lien upon real estate in which they no longer had any interest.' Nor does the law allow the collector to seize personalty for taxes without notice to the party liable, given in person, or by leaving a copy with his family at his residence (Rev. Stats., sect. 6754), which in case of non-residents seems impossible. Nor is it clear that the statute contemplates a seizure of personalty for back taxes on realty which have been reduced to judgment and for which a special lien is given. Rev. Stats., sect. 6754. However this may be, we think the collector was under no obligation to stop the sale, which was proceeded with in strict accordance with the judgment, and that nothing was shown on hearing of the motion which enables us to see that the circuit court erred in refusing to set the sale aside. The judgment will therefore be affirmed.

Judge Lewis concurs; Judge Thompson dissents.