COLLECTOR OF REVENUE оf JACKSON COUNTY, MISSOURI, (Plaintiff) Respondent, v. PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAXES, (Defendant), M. T. WILLIAMS, NORA G. SULLIVAN, THOMAS SULLIVAN and THOMAS EDWARD SULLIVAN, Executor Under the Will of MICHAEL J. SULLIVAN, Deceased, Appellants-Respondents, LAND TRUST OF JACKSON COUNTY, MISSOURI, Respondent-Appellant
No. 41757-247 S. W. (2d) 83
Court en Banc
February 11, 1952
Rehearing Denied, March 10, 1952
362 Mo. 1054
The probate court has been given jurisdiction of the specialized function of supervising the administration of estates. We have often held that in determining matters within its jurisdiction a probate court may apply equitable principles. In re Jamison‘s Estate, Mo. Sup., 202 S. W. 2d 879, 883. And in probate proceedings one may avail himself of an equitable defense so long as it is asserted purely defensively and does not involve the granting of affirmative equitable relief. Wilcox v. Powers, 6 Mo. 145; Evans v. York, Mo. App., 216 S. W. 2d 124, 127. We perceive no reason why, if the probate court in a proceeding under
We hold therefore that at a hearing on an administrator‘s application for refund under the provisions of
Judgment is reversed and the cause remanded. Van Osdol and Lozier, CC., concur.
PER CURIAM:—The foregoing opinion by COIL, C., is adopted as the opinion of the court. All the judges concur.
Harry Howard for appellants.
David M. Proctor and Maurice Benson for Kansas City, Missouri, amicus curiae; Arthur N. Adams, Jr., of counsel.
ELLISON, C. J.—Originally this was Land Tax Suit No. 3 brought by the Collector of Revenue of Jackson County under the “Land Tax Collection Law,”
After due service upon her by mail and publication, as provided in
Over three months later, on or about January 20, 1947, the representative of a real estate corporation, acting in behalf of a prospective purchaser, M. J. Sullivan, approached the County Collector‘s office and the delinquent tax attorney to ascertain whether the tract could be redeemed at a desirable price. The owner, C. M. Oxlеy, had agreed to accept $2500 for her title. The County Collector‘s attorney “o.k.‘ed” the petition to reduce the delinquent tax indebtedness of $23,492.29 for which the tract had been sold by about two-thirds to $7845.60, of which $2845.60 would go to Kansas City and $5000 to Jackson County and the School District.
The county court of Jackson County approved that compromise. And the minutes of the Kansas City Board of Delinquent Tax Adjustment recited that the Board would accept a settlement of the City‘s part of the taxes for the amount named above. The compromise also was agreeable to the prospective purchaser M. J. Sullivan. So the real estate cоrporation acting for Sullivan on or about January 21, 1947, had its bookkeeper M. T. Williams, as straw party or trustee for Sullivan and his heirs, take a deed to the lot in his own name from the delinquent taxpayer C. M. Oxley and her husband, at her price of $2500.
Williams by attorney then filed in circuit court three days later on January 24, 1947, a motion to vacate the previous default judgment of foreclosure of the lot entered January 12, 1946, and the sale thereof at auction on October 15, 1946, to the Land Trust, which, thereafter held the title under
The motion was taken up by the circuit court instanter (January 24, 1947) in the absence of the court reporter and without notice to any adverse party, and was sustained on the same day and the previous default foreclosure judgment and sale were vacated and set aside. When the sheriff‘s report of sale of the various delinquent lands was filed on February 5, 1947, it still contained a recital of the foreclosure and sale of the lot here involved to the land trustees on October 15, 1946, but that part was scratched out with lines drawn therethrough. And when the report of sale came up for confirmation on March 31, 1947, a recital was inserted that the sale of the lot had “heretofore been set aside by the court.” It is conceded that as soon as the compromise tax settlement was agreed upon on January 23, 1947 Sullivan promptly paid to the County Collector the stipulated amount due the city, county and school district. This was the day before the circuit court vacated the foreclosure judgment and sale.
On May 8, 1947 the circuit court ordered that the foreclosure sale of certain parcels of land in Suit 3, including the lot here involved, be disaffirmed; that the lien of the tax judgments be continued; and that the sheriff readvertise and resell those parcels аt public auction for cash at a subsequent sheriff‘s foreclosure sale. Evidently the court had forgotten that it had already set aside on January 24, 1947 the foreclosure sale of the instant lot to permit a compromise settlement of the delinquent taxes thereon without any foreclosure.
On July 3, 1947 the Land Trust filed a motion to set aside the trial court‘s order of January 24, 1947 vacating the foreclosure sale of the lot in suit. The trial of the cause on that motion began on November 14, 1947. On that day Williams and the purchaser Sullivan filed a lengthy motion and answer. The case in chief of the Land Trust was brief. It consisted mainly of the documentary evidence hereinbefоre reviewed. In addition Mr. Wilson D. Wood, one of the three trustees of the Land Trust, and the Land Commissioner L. C. Miller testified.
Trustee Wood further stated that “until a long time afterward” he had no knowledge or notice of any proceedings for the divestiture of the Land Trust‘s title to the lot in controversy. And he specifically denied knowledge of the circuit court proceedings on January 24, 1947 whereby straw party Williams by an ex parte motion filed in Land Tax Collection Suit No. 3 obtained an order vacating the foreclosure judgment and execution sale of the lot to the Land Trust on October 15, 1946. Wood said also that the Land Trust had a regular attorney at that time, Mr. Arthur N. Adams, Jr., and it is undisputed that no notice of Williams’ motion was served on him. Trustee Benton, who participated in the appraisal did not testify at the trial, he being abroad at the time.
Land Commissioner Miller testified he was serving as such on January 24, 1947 when the circuit court vacated the foreclosure judgment and sale of the lot in suit so that it could be redeemed for $7845.60, one-third the amount of the delinquent taxes due and nearly $5000 less than the minimum sale value the Land Trustees had put on it. Miller said his office was on the same floor as the circuit court room, but that he received no notice of the hearing on the motion to vacate аnd did not know of it until the sheriff came into his office later about March 12, 1947 and changed his report of sale on file there by scratching out the part showing the sale of the lot in controversy to the Land Trust.
On behalf of the appellants-respondents Williams and the Sullivan heirs [Sullivan having died in the interim] testimony was adduced from two assistant city counselors E. R. Seaver and Henry H. Fox, Jr., and a clerk-stenographer Mary Diviney in the office of Delinquent Land Tax Attorney Thice. Mr. Seavers produced records from the office of the Kansas City Board of Delinquent Tax Adjustment showing that at meetings held on January 20 and January 27, 1947, the Board and Delinquent Tax Attorney Thice agreed to settlе the City‘s claim for delinquent taxes on the lot in controversy at the compro
Assistant City Counselor Henry H. Fox, Jr., who was an assistant to Delinquent Land Tax Attorney Thice in the office of the Collector of Revenue, testified that in December or January, 1946-7, Land Commissioner Miller had a conversation with him in that office, at which Thice was present along with Mr. Coyne Law, an Assistant Land Tax Attorney. Fox said that in the conversation Mr. Miller, speaking as Land Commissioner under the Land Tax Collection Law, “indicated it was his opinion that the Land Trust had no interest in this property until such time as the Court had actually confirmed the sale.” And he quoted Miller as further saying “that as far as his office was concerned, in the future, it was not necessary to serve any of these notices upon his office, which we had been insisting upon in the past.” This, Fox said, was before the circuit court approved the compromise tax settlement with the county court in this case on January 24, 1947. And he didn‘t know the Land Trust was represented at that time by another attorney, Mr. Adams. But Fox conceded he was not representing the Land Trust in whatever he did.
Miss Diviney testified that up to January 18, 1947 her office (Collector of Revenue) had endeavored to serve on the Land Trustеes copies of all court orders affecting delinquent lands but between January 18 and January 24, Mr. Miller, Land Commissioner, informed her he was not interested in them. In rebuttal Mr. Miller, Land Commissioner, emphatically denied that he ever told anybody not to serve notices on the Land Trust of these redemption proceedings, and that he thought the Land Trust had no interest in such properties until the foreclosure sale had been confirmed by the circuit court.
On May 21, 1948 the trial court called up and overruled the Land Trust‘s motion of July 3, 1947 to set aside the court‘s order of January 24, 1947 vacating the foreclosure sale of the lot in controversy to the Land Trust on October 15, 1946. In connеction with that ruling the court issued a memorandum opinion holding that the County Collector had control of delinquent land tax foreclosure suits under the Land Tax Collection Law prior to the disaffirmance or affirmance of the sale of a tract to the Land Trust; that the interest of the latter was not such as a private purchaser at the sale would have; that it had no vested interest prior to the approval of the sale by the court and the execution of a deed, and it was not entitled to notice; that the attorney for the County Collector also represented all the interested parties; and that the Land Trust was not entitled to the rеlief asked in its motion.
Eight days thereafter the court set aside this order of May 21 on learning that M. J. Sullivan, the real purchaser of the lot from the Oxleys had died on May 5, before the order was made. This was ex
Over a year later, on July 1, 1949, the straw party, M. T. Williams, and the heirs and executor of the deceased M. J. Sullivan, real purchaser of the lot in controversy, filed a lengthy motion reciting the history of the litigation; that no party thereto had revived the cause within one year since his death; and praying that the court dismiss or overrule the motion of the Land Trust of July 3, 1947 seeking a dismissal of the court‘s original order of January 24, 1947, which latter vacated the foreclosure sale of the lot to the Land Trust on October 15, 1946.
In ruling on this motion of July 1, 1949 the trial court wrote another memorandum opinion dated September 16, 1949, which differed in theory from its prior opinion of May 21, 1948, supra. That opinion held the County Collector had exclusive control of suits under the Land Tax Collection Law; and that the Land Trust had no vested interest in land sold to it thereunder unless and until the sale was approved by the court. But the opinion of September 16 ruled the Land Tax Collection Law prescribes the time and manner in which property may be redeemed thereunder, and is controlling but not exclusive—this latter on the theory that the judgment foreclosing a delinquent tax lien is interlocutory, and the taxing authorities may withdraw land from the suit and then compromise the tax claim. This part of the opinion was as follows:
“It is my conviction that the attorneys for the Land Trust and the School District are correct in their view that the Land Tax Collection Act prescribes the time and manner in which the owner of property may redeem in proceedings under the Land Tax Act. However, the question is raised as to whether or not the Land Tax Act is exclusive. In other words, can the County Collector through the County Court withdraw a parcel of land from the Land Tax suit and proceed to adjust and settle the tax under
Section 11122, R. S. Mo. 1939 ? If the taxing authorities have the power or authority to withdraw the tract here in question from the Land Tax suit, they then had authority to make an adjustment of the taxes. * * * I have concluded that the judgment foreclosing the tax lien was interlocutory; that the taxing authorities had a right to withdraw the specific piece of property from the Land Tax suit and when this was done the taxing authorities had the right to settle or adjust the tax if the facts brought it within the statute conferring that authority.”
It is conceded that the Land Tax Collection Law,
The lot was offered at public sale on three different days but no bid was received equaling the full amount of the delinquent taxes included in the judgment of foreclosure, plus interest, penalties, attorney‘s fees and costs then due thereon. Thereupon on the third day, October 15, 1946, under
Under
As a matter of fact the record here shows the court did do that very thing on May 8, 1947, continuing the lien of the original foreclosure judgment of January 12, 1946, and ordering the lot readvertised and resold—along with other tracts. There is no explanation of this in the Sullivan briefs. We cannot see why the court made that order of May 8, 1947 ordering the lot readvertised and sold under the judgment of January 12, 1946, when several months earlier on January 24, 1947 it had vacated and set aside altogether the January, 1946 judgment.
Evidently the trial court was confused, as indicated by its divergent memorandum opinions of May 21, 1948 and September 16, 1949. Its final conclusion was that its judgment of foreclosure of January 12, 1946 was interlocutory and could be set aside in its discretion. But the Land Tax Collection Law did not so provide. It dealt with emergent situations. It could be invoked only where the land taxes due had been delinquent for four years, at least in part. It created the Land Trust as a public corporation,
In view of these statutes we are unable to agree with the first contention of the aрpellant Sullivan heirs that the trial court could, after the foreclosure judgment on January 12, 1946, sanction a compromise arrangement between the county court and outside parties whereby over $23,000 in delinquent taxes on the lot in controversy were settled for about one-third that amount. It was pointed out in Collector of Revenue v. Parcels of Land, 357 Mo. 1231, 1234(2), 212 SW. (2d) 746, 747(1,2), that if redemption is not made prior to that sale, the owner is barred of any further title or interest in the land. And if that be true where the owner is seeking to redeem and pay the full amount due, then certainly it should be all the more true where, as here, the owner‘s transferee seeks to “compromise” and pay less than the full amount due.
The next point made by the appellant Sullivan heirs and executor is that the instant suit brought by the Collector of Revenue
There remain three points which call for brief discussion. First, it is contended in behalf of the Sullivans that the evidence shows the Land Trust was agreeable to the vacation on January 24, 1947 of the judgment of forfeiture against the last known defendant Oxley, rendered January 12, 1946. We wholly disagree with this contention. There was testimony that Land Commissioner Miller waived notice of tax compromises, but he vigorously denied it. And in any event the three trustees under the Land Trust were the ones who held the title to the lot, and there is no contention that they waived notice or agreed. On the contrary the evidence is that they considered the lot worth $12,500 to $15,000.
The second point made is that the Land Trust is estopped to claim title to the lot, this on the theory that when the compromise settlement was accepted by the collector and the county court, the taxing entities entitled to the money, state, сounty, city and school districts, each accepted its share, although it was only one-third of the amount of taxes due. On this point cases are cited holding that governmental agencies such as cities and counties will in rare instances be held estopped by conduct.1 But the doctrine cannot be applied to a case such as this where the Land Tax Collection Law has created a Land Trust to bid in delinquent land for the whole amount of the tax charges due if it fails to bring that amount at the foreclosure sale. In that situation, under
The third point made by counsel for the appellant Sullivan heirs is that the provisions of the Land Tax Collection Law directly involved here,
The first of the foregoing two statutes,
Counsel for the appellant Sullivan heirs next invoke
But by the terms of the Act, the foregoing elective privilege of rescission did not apply to any Class One county which had never
The contention of counsel for the appellant Sullivan heirs that the Land Tax Collection Act, supra,
But in our opinion the proceedings in the Collector of Revenue‘s foreclosure suit were saved from claimed unconstitutionality by the Schedule of the new Constitution. Section 2 thereof provided: “All laws inconsistent with this Constitution, unless sooner repealed or amended to conform with this Constitution, shall remain in full force and effect until July 1, 1946.” And Sec. 5 of the Schedule provided “аll fines, taxes, penalties and forfeitures assessed, levied, due or owing prior to the adoption of this Constitution (on February 27, 1945) shall continue to be as valid as if this Constitution had not been adopted.”
The delinquent taxes sued on here accrued between 1927 and 1944. The tax suit was brought on August 29, 1945. The judgment of foreclosure against C. M. Oxley the then record owner, was rendered on January 12, 1946, nearly six months before July 1, 1946 when the new Constitution wiped out prior inconsistent laws. That judgment barred and forever foreclosed all her right, title and interest in the land.
For the reasons stated the judgment of the trial court vacating the judgment of foreclosure and the foreclosure sale to the Land Trust is reversed and the cause remanded with directions to enter a judgment affirming the same. All concur.
Hyde, J., also concurs in separate opinion in which Hollingsworth, Dalton, Leedy and Conkling, JJ., concur and Ellison, C. J., concurs.
We held in that case that the questioned Fire District Act did not deal with “the organization and powers” of counties. Instead we said: “It deals with a different type of political sub-division, to-wit, a type of municipal corporation duly organized and existing under a general law providing for its incorporation by decree of the circuit court.” We held “that the statute, House Bill 7, is not unconstitutional as ‘an attempt to create an additional class of counties in violation of
I think the same thing is true of the Land Tax Collection Act. It does not deal with “the organization and powers” of counties and the Land Trust created by the Act is no part of county government. The Land Trust is a separate entity from the county; it is a public or political corporation. (Spitcaufsky v. Hatten, 353 Mo. 94, 182 S. W. (2d) 86, l. c. 108.) The functions of the Land Trust go beyond county government. Its services are rendered not merely to the county but also to the State of Missouri and to every municipality, school district, road district, sewer district, levee district, drainage district and other tax districts located in the county in which it opеrates. It has its own official seal; “the power to sue and issue deeds in its name“; “the general power to administer its business as any other corporate body“; and it may convey real estate “without in any case procuring any consent, conveyance or other instrument from the beneficiaries for which it acts.“. (
Hollingsworth, Dalton, Leedy, Conkling, JJ., and Ellison, C.J., concur.