51 Mo. 63 | Mo. | 1872
delivered the opinion of the court.
In pursuance of the provisions of the act of March 16, 187Q (Wagn. Stat. 2d ed., 821 a), the County Court of Pike County directed a special election to be held in the township of Ashley, upon a proposition to subscribe $8,000 to the capital stock of the La. & M. Plank or Macadamized Road Company, and after the election appointed a special commission to subscribe for the stock, and assessed a special tax to pay for the same. The sheriff, as tax collector, has made a levy upon the real estate of the plaintiff to pay the amount assessed against his property, and this is a proceeding to enjoin him from selling the same.
The question first arises whether injunction will lie, as the defendant objects to 'the remedy as now sought, and cites Drake v. Jones, 27 Mo. 428, and Kuhn v. McNeil, 47 Mo. 389. In these cases it was held that a sheriff will not be enjoined from selling lands upon common execution; but the court has uniformly enjoined the sale of lands for the payment of taxes, upon the ground that a cloud is thereby cast upon the title, although
The plaintiff bases his equity Upon the grounds: first,' that the proceedings under which the stock was subscribed were so irregular as to vitiate the assessment of the tax; and, secondly, that the collector had no right to collect it by levy upon real estate.
The Circuit Court dissolved the injunction, and its judgment is reversed and the injunction made perpetual.