Rankin v. Porter Real Estate Co.

199 Mo. 345 | Mo. | 1906

GRAVES, J.

Plaintiff brings ejectment ágainst defendant to recover a lot in the city of Sedalia. Petition in ordinary form. Answer a general denial. Jury waived, and a trial by court, resulting in a judgment for defendant, from which plaintiff appeals.

By stipulation it appears that defendant was in possession at the institution of the suit and at the date of trial; that the title of the lot was in plaintiff and that he was entitled to recover unless he had been divested of title by a certain tax deed of date September 8, 1896. Plaintiff introduced the written stipulation and rested.

Defendant then introduced this tax deed mentioned in the stipulation, together with the petition, summons and return, judgment, execution and report of sale in the tax proceeding. This tax proceeding was, according to the petition, entitled: “The State of Missouri, at the relation and to the use of V. P. Hart, Collector of the City of Sedalia, Plaintiff, vs. John H. Rankin, Defendant.” The summons was so entitled. Personal service was had and judgment taken by default ; the petition declares for city taxes; the judgment is for taxes without designating the kind of taxes. The execution recites that the judgment was for “certain delinquent state, county and special taxes and interest,” and for certain costs, and declares a special lien upon the lot in question. The deed contains the same recitals as are found in the execution as herein-above set out. Timely and proper objections were made to the introduction of all this documentary evidence, and exceptions properly saved. The above suf- „ ficiently details the facts for a consideration of all the points raised by counsel.

I. Appellant contends that, if the judgment is for state and county taxes, it is void for the reason that the collector of the city of Sedalia has no right to sue for and collect such taxes. It is true that the relator in the tax proceeding, the collector of the city of Sedalia, had no right to sue for state and county taxes, but in this case the defendant was properly served with process, and had the city collector sued for state and county taxes, which he did not do, the proper time to have raised that question would have been by demurrer prior to judgment. The defendant in the tax proceeding made no appearance, and had the petition demanded judgment for state and county taxes and the judgment had been entered in accordance with the petition, no complaint could afterwards he urged against the judgment. The defendant had an opportunity for his say in court upon that question, but having “sinned away” his day of grace, cannot now be heard in a collateral attack upon the judgment.

II. It is also further contended that at the time the tax proceeding was instituted, by an amendment of the statutes, the lien for city taxes was given to the city of Sedalia, and the suit could not be maintained in the name of the State for city taxes, and for that reason the judgment is void. “What has been said above as to appellant’s first contention applies with equal force in reply to this second contention. If the suit was for city taxes, as in fact it was, then the defendant in the tax proceeding should have raised by proper plea the question of the right of the State to enforce the lien for city taxes. This was not done, and judgment followed. John Jones may not have a right to enforce a lien against my property, but if he brings suit so to do, and I, after being duly served with process, permit him to obtain a judgment enforcing the lien, I would be in no position to attack the judgment collaterally. This second contention is therefore ruled against the appellant, without however expressing any opinion upon the question as to whether or not suits for city taxes must be brought in the name of the city rather than in the name of the State. It is not necessary for the disposition of the case at bar to pass upon that point.

III. We are of opinion that the serious question in this case is the variance between the judgment and the execution. A tax proceeding is an action to enforce a lien and not a mere action to recover the amount of a debt. This judgment enforcing the lien should state facts sufficient to show for what taxes the lien is being enforced. The tax judgment involved here simply recites that it is for “taxes” without specifying the kind of taxes. The defendant introduced with the judgment the petition, which claimed a lien and judgment for city taxes only. That judgment must be based upon the petition and the evidence, is a rule of law well founded. Now, if we read into this judgment, which we think we, have a right to do, the allegations of the petition upon which it is based, we have a judgment enforcing a lien for city taxes. Then when we look at the execution, we find that it purports to be issued upon a judgment enforcing a lien for “state, county and special taxes,” a clear variance. Suppose this execution had actually been presented to Eankin for payment, wouldn’t he have had the right to say to the officer, “You have no such judgment against me. The State sued me to enforce a lien for city taxes and got such a judgment, but your execution does not describe the judgment which was procured against me.”

You cannot procure a lien for one thing by your judgment and by execution enforce a lien for another and different thing. Executions must be founded upon and properly describe the judgment, for otherwise they are without force.

In our judgment the execution in this tax case, and the proceedings thereunder, are void, and so holding, it follows that the judgment of the circuit court should be reversed and the cause remanded with directions to enter judgment for the plaintiff and it is so ordered.

All concur.