Yeaman v. Lepp, 167 Mo. 61 (Mo. 1902)

MARSHALL, J.

This is a bill in equity to set aside a sheriff’s deed to the defendant, made under a special fi. fa. issued upon a judgment for taxes, amounting to $9.75, and costs $15.18, assessed against the south half of the northwest quarter, and southwest quarter, and west half of the southwest quarter of the. northeast quarter, of section 28, township 39,

range 4 east, in Jefferson county, containing two hundred and sixty acres, being the property of the plaintiffs. The petition alleges that in June, 1897, the plaintiffs were made defendants in a tax suit filed in Jefferson county by the tax collector of that county to recover said taxes assessed against said, land; that at the September term, 1897, a judgment was rendered for said taxes and costs and foreclosing the lien of the State upon said land therefor; that on October 7, 1897, a special execution was issued to the sheriff commanding him to sell said land, or so much thereof as-was necessary, to satisfy the debt and costs; that the sheriff sold the said land to defendant for one hundred and ninety dollars and made him a deed thereto, under which the defendant now claims the land. The petition then alleges the following:

the property of the plaintiffs in an unlawful and illegal way, for about one-quarter of its reasonable value, but for which he realized on said illegal sale the sum of $190, or about seven times the taxes and costs, or the amount of said judgment.

that said deed be cancelled, and held for naught, and for such other orders and decrees as to the court may seem equitable and just in the premises.”

The defendant demurred to the petition, generally, because it did not state facts sufficient to constitute a cause of action or to entitle the plaintiffs to the equitable relief sought, and specially, because it did not allege that the plaintiffs had tendered to the defendant, before the institution of the suit, the amount of the purchase price paid by the defendant. The circuit court sustained the demurrer, the plaintiffs refused to plead further, a final judgment was rendered for the defendant on demurrer, and the plaintiffs appealed.

I.

The question presented for adjudication is whether the petition states a cause of action. The plaintiffs’ contention is that “the property being susceptible to division and being one tract, a portion of one section, all connected, and sued on as one tract, it was the duty of the sheriff to subdivide the land and sell only so much as was necessary to satisfy the judgment and costs.” On the contrary the defendant’s contention is that the provision of the statute requiring a sheriff to subdivide real estate offered for sale under execution is only directory, and, further, that “there being no allegation in the petition that the real estate was assessed and sued on as one tract or that the lands were owned by the plaintiffs” [the plaintiffs are Stephen M. Yeaman and Alice A. his wife] “as tenants in common or by the entirety, each forty acre tract was liable for its own taxes and no parcel was liable for the taxes of any other.” And in support of the special demurrer the defendant claims that the petition does not state that the plaintiffs tendered to the defendant the cost of the sheriff’s deed, amounting to two dollars and fifty cents.

In other words, the plaintiffs contend that the land con

sisted of three legal divisions, of one hundred and sixty acres, eighty acres, and twenty acres, respectively, and that it was assessed as one tract, and was sold as one tract, when, according to the command of the special fi. fa. and of the statute, the sheriff should have sold each-legal division separately and should have sold only so much as was necessary to satisfy the debt and costs, while on the other hand the defendant contends that there is no allegation in the petition that the land was assessed as one tract, that each forty acres was liable for its own taxes and that no parcel was liable for taxes assessed against any other parcel.

In either view the result is that the circuit court erred in sustaining the demurrer. If the land was assessed as one tract and sold as a whole, the sheriff did not obey the command of the fi. fa. nor the provision of the statute,- and sell only so much as was necessary to satisfy the debt and costs, and this being a direct attack in equity, the sale must be set aside. If, on the other hand, each forty was assessed separately and was only liable for its own taxes, then each forty should have been sold separately, and as the petition charges that this was not done but that the land was sold as a whole (and the demurrer admits this fact), then the sheriff acted illegally and the sale must be set aside.

The petition does not state whether the land was assessed as one tract or each fractional part of the section separately, nor does it state what the form of the judgment was, but it does state that it was sold as one tract. But however it was assessed, the sheriff acted contrary to law in selling it in bulk.

The statute (sec. 7703, R. S. 1889) provides 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 is or was assessed.” Section 7553, Revised Statutes 1889, which relates to the arrangement of the assessor’s books, provides: “When any person shall be the owner or original purchaser of a section, half section, quarter section or half quarter section,

block, half block or quarter block, the same shall be assessed as one tract, and the name of such person placed opposite thereto, the lowest numbered range, township, section, block, lot or survey always to be placed first in the ‘land list.’ The assessor shall consolidate all lands owned by one person in a section, and all town lots owned by one person in a square or block, into one tract, lot or call, where it is practicable; and for any violation of this section in unnecessarily dividing up the same into more tracts than one, or more lots than one, the county court shall deduct from his account, for making the county assessment, ten cents for each tract or lot not so consolidated.” Section 7559, Eevised Statutes 1889, contains the same provisions. Section 7564, Eevised Statutes 1889, relating to the valuation to be placed on property provided': “The assessor shall value and assess all the property on the assessor’s books according to its true value in money at the time of the assessment’; and all other personal property shall be valued at the cash price of such property at the time and place of listing the same for taxation. Each tract of land and town lot shall be assessed and valued separately; but all land in a section and lots in a square or block, owned by one person, which are contiguous, or which can be consolidated into one tract, lot or call, shall be valued as one tract, lot or call, as contemplated in section 7553.”

Section 7682, Eevised Statutes 1889, regulating suits to collect back taxes provides that, “all lands owned by the same person or persons may be included in one petition and in one count thereof,” etc.

Section 7683, Eevised Statutes 1889, provides: “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 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,” etc.

So that, the provisions of section 7703, providing that each tract of land or lot shall be chargeable only with its own taxes, must be read and construed in connection with section 7553, defining what constitutes a tract or lot, and with section 7564 which requires the assessor to value each tract or lot, as defined by section 7553, separately, and with sections 7682 and 7683, which govern the manner of bringing suit to collect back taxes and the form of the judgment to be rendered, and the duty of the sheriff in executing the special fi. fa.

In other words, section 7553 requires all land owned by the same person in the same section, or all lands so owned in the same block, to be consolidated and treated as one tract or one lot, and section 7564 requires each consolidated tract or lot to be assessed separately, when the land lies in the same section or the lots lie in the same square or block, and if they are contiguous or can be consolidated into one tract, lot or call. It is in this sense that the terms tract or lot as used in section 7703 and in section 7683, were employed by the lawmakers when they enacted those sections.

The defendant’s contention that each forty acres is liable for its own taxes is therefore untenable. But as shown herein, even if it was the proper construction to place upon the statute, the sale in the case at bar is unlawful because the 260 acres were sold in bulk and not separately as forty-acre tracts.

The land in controversy lies in the same section, is contiguous, could be consolidated into one tract and is owned by the same persons. And while it is true the petition does not state that it was assessed as one tract, still the law required it to be so assessed and listed, and it will be presumed, in the absence of averment or proof to the contrary, that the officers, charged with the assessment and collection of the taxes, did

their duty and assessed it as one tract. [Lenox v. Harrison, 88 Mo. 491; Mathias v. O’Neill, 94 Mo. 520; Blodgett v. Schaffer, 94 Mo. 652; Agan v. Shannon, 103 Mo. 661; State ex rel. v. Bank, 120 Mo. 161.]

Hence, the petition must be construed as charging that the two hundred and sixty acres were treated as one tract in the assessment, in the suit for taxes .and in the judgment, and that the judgment and special fi. fa. commanded the sheriff to sell the land or only so much thereof as was necessary to satisfy the judgment, interests and costs. The petition charges, and the demurrer admits, that it was not necessary to sell the whole tract to satisfy the judgment, which was for only $9.75, and the costs, which amounted to only $15.18, aggregating $24.93, with interest from September, 1897, the date of the judgment, to the date of the sale, which date is not stated, but is alleged to have occurred before this suit was begun on August 12, 1898; and it further alleges that the sheriff did sell the land in bulk, and that it brought $190, or about seven times the amount of the judgment, interest and costs, and that the land was really worth $800. The petition further charges that the land was easily susceptible of division and sale, either according to the recognized portions of the section, as established by the Hnited States surveys and recognized by chapter 156, Revised Statutes 1889, in which the three parts lay, or into even smaller subdivisions, and that a sale of even the smallest subdivision would have yielded enough to pay the whole amount of the judgment, interest and costs. This is not .only sufficiently averred, but the amount realized at the sale shows that it was not necessary to sell the whole tract in order to produce enough money to pay the judgment, interest and costs. The petition, therefore, clearly stated a violation of duty by the sheriff under the statute, which entitles the plaintiffs to have the sale set aside, upon terms.

In reaching this conclusion the ease of State ex rel. v. Sargeant, 76 Mo. 557, has not been overlooked. That case is

clearly distinguishable from the case at bar in this, that the judgment was against each lot separately and the fi. fa. commanded the sheriff to sell each lot separately, and in the further particular that sections 7553 and 7555 do not apply to the city of St. Louis in which jurisdiction that case arose, and where a different method of assessing and collecting taxes is provided by the charter of that city. [Art. 5, Charter, St. Louis, p. 2112, vol. 2, R. S. 1889.]

Counsel for defendant cite Rector v. Hartt, 8 Mo. 448; Bouldin v. Ewart, 63 Mo. 330; and Lewis v. Whitten, 112 Mo. 318, as authority for the claim that the provision of the statutes requiring a sheriff to subdivide a tract of land sold under execution based upon a general judgment or upon a special judgment for taxes is only directory, and contend that the failure of the sheriff to comply with the statute in this regard does not render the sale void, or affect the title of the purchaser. Those cases, and others that might be cited, do hold that such violation of duty by the sheriff does not render the sale void so that the title conveyed by the sale can be attacked collaterally, but those cases also hold that the sale may be attacked directly either by a proper motion at the proper time in the court that rendered the judgment and while the matter is still within the control of the court, or by a bill in equity, and in this way the sale may be set aside. This is a direct proceeding in equity, and hence is within the rule.

It only remains to consider whether the petition sufficiently alleges a tender, for of course a court of equity would not set aside the sale except upon equitable terms. The allegation of the petition is, “that plaintiffs have offered before the institution of this suit to reimburse and pay the said defendant Lepp, his money, costs and expenses, if he would re-convey said property to plaintiffs, but he has refused so to do.” And it further offers to pay Lepp “the amount of money by him- bid for said land, or so much thereof as will be necessary in addition to said $146.57” [which is the balance of the

$190 bid by Lepp at the sheriff’s sale after paying the judgment, interest and costs]' “to equal the amount of his bid of $190.” This is not a direct averment of a tender in its legal sense, that is, an offer of the money, but it does allege and offer to pay the amount the defendant bid and paid for the land with all his costs and expenses, and that the defendant refused the offer, and it renews the offer, and this is all that is necessary in equity. [Whelan v. Reilley, 61 Mo. 565.] And even if no offer was so made, a court of equity has power to -impose the terms upon which it will lend its aid, and would require the amount paid to be refunded as a condition precedent to granting the relief. [Kline v. Vogel, 90 Mo. 239.]

It is further contended that as the sheriff, who has possession of the $146.57, balance aforesaid, is -not a party to this action, the court can not order that sum returned to the defendant or the plaintiff or any one else. But this does not impair the power of the court to set aside the sale, and to require the plaintiffs to reimburse the defendant. Eor the court could impose those terms upon the plaintiffs and it 'would rest with them to produce the necessary amount of money. If the funds in the hands of the sheriff were not available to the plaintiffs for the reason given by the defendant, the plaintiff would have to get that amount from other sources. However, as this case must be retried, the plaintiff should be granted leave to amend by making the sheriff a party defendant, if he is so advised.

The circuit court erred in sustaining the demurrer to the petition and its judgment is therefore reversed and the cause remanded to be proceeded with in accordance herewith.

All concur.