*1 OF SUPREME COURT in v. Fennimore 557. Assn., Note Co. 147 Mo. Gast Bank upon bearing tbe See question 262 Mo. Moffitt, 645, also Albers injunction pro- jurisdiction appellate in an of ceeding. damage allegations to defendant,
Nor can the of appeal application an of to forth defendant support the affidavit both court, thereof, subsequent judg of were filed to rendition of determining question juris any aid be' ment, jurisdiction been well settled that the it has diction, Appeals be uneon cannot ousted Court ex rel. E. L. P. [State tradicted affidavit. Union & Co. Tinsley Reynolds, 710; v. Rom Tobacco Co. c. 435, l. 439.] As said Union bauer, Mo. Elec Company supra, Light “It Power l. c. 717: Case, tric & practice dangerous jurisdiction a have our one court to another on mere affidavit.” shifted jurisdiction. no desire to shirk But before We rightfully it we must be satisfied that it is we assume analysis pleadings, painstaking ours. A full ex- a careful record, amination of review of the au- to conclude that is leads us thorities, there here any present justify facts sufficient basis of our as- sumption jurisdiction. therefore be
Let cause retransferred to the Kan- City Appeals. It so sas Court ordered. All concur, sitting. except T. Jnot Blair, James DENT and J. FRANK GEORGE VERA ROGERS v. Appellants. DENT et al., A. One, 1922. March
Division Payment Tax Before Suit. Aside: SALE: Suit Set TAX 1. deed, including suit for proceedings, the sheriff’s Where by publication, were all were sued defendants wherein law, compliance fact regular 292 Mo.] OCTOBER TERM, brought collector owner before suit was and the payment
had failed to credit such was not suffi- on the books ground cient deed to set aside sherill's *2 purchaser [Distinguishing a bona-fide at the sheriff’s sale.' Mangold Bacon, 496.] 237 v. Mo. Inadequacy 2. -: -: a of Price. In set aside a suit to judgment thereunder, and sheriff’s deed wherein the evidence appearance disclosed no circumstance of fraud or or unfairness in sale, tending inadequate connection cauce a at an sale price, forty land, the fact that acres of timber for which having it, five hundred dollars without ever seen forty-eight dollars, inadequacy price sold for did not show justify setting sale, as to shock the conscience aside such question vicinity, that the land in and lands view of fact character, practically same no market value after the culled, being constantly timber had been cut off or were sold fifty per for taxes one dollar and a half at from cents acre. Appeal Dent Circuit Court.—Row. L. B. Woodside,
Judge. Reversed. appellant. Dalton
G. G. property (1) purchaser A at an execution sale regularity proceed- examine into the not hound to judgment ings by thereunder execution which the affected.by defects or a not and as rule is obtained, appearing proceedings irregularities of record. not Cyc. Thompson 157; v. 2 Pet. Reed 1301; Tolmie, 17 v. (2) Cyc. 1485. 739; Fed. 23 C. 37 737; 148 J. Munn, collect the circuit court does In an action to back special summary jurisdiction man- or not exercise its judgments therein entitled to the same are and its ner, presumptions' ordinary judgments. its Brown
as attend
Allen
292 Mo.—37 OF
578
SUPREME COURT
v.
showing
(4)
any
of fraud
433.
In the absence
justify
price
inadequacy
irregularity,
will
mere
setting
judicial
Plammond v.
sale.
court
aside a
v.Meir
21;Mo.
12
23
Scott,
11;
Brown,
Mo.
Nelson v.
421;
Mo.
44
Co.,
31 Mo.
Parker v. Railroad
Zelle,
332;
Wagner
Mo.
Phillips,
94
117;
0’’Neil,
v.
v.
51 Mo.
Gordon
205
v.
690;
Voss,
210 Mo.
Stortz
355; Walker Mills,
v.
App.
114 Mo.
Elliott,
S.
rel. v.
610;W.
State ex
subject-matter
jurisdiction
(5)
court had
parties,
is unassailable.
its
and the
therefore
judicial
(6)
sale
At the
Mo. 268.
Betts,
Shemwell v.
delinquent
foreclosing
lien
the state’s
brought
forty
value.
its full
acres involved in
action
Martin
169;
121 Mo.
Clark,
C.
Railroad v.
760;
J.
Phillips,
117;
Wagner
51 Mo.
195;
Castle,
Layton
Cooley
(3 Ed.)
Trust Co.,
959;
on Taxation
*3
allege
Respondent
(7)
in her
does not
RAGLAND, conveyance a tax real estate and sale and February made in thereof. The was filed execution bill 6, 1920. alleges: petition in Plaintiff is, substance State;
at all times a non-resident of this on been, has purchased March she he Jarrell, from one 1912, 26, conveyed by warranty duly re- to her which she deed forty land, acres of the southeast fourth of corded, Township Range quarter 4, 14, 34, southwest of Section County, Missouri; west, Dent all state she years county land for the assessed year taxes for she inclusive; 1912 to 1918, penalties on March 6, and costs, interest, 1916, receipt 1917, and on date received collector’s payment therefor; collector to credit failed February kept purpose, tax books Circuit suit to be 15, instituted, caused a *4 County, relation the his Court for Dent State at against plaintiff of and the Jarrell, collection said year against 1916, the taxes assessed the land plaintiff delinquent unpaid; though they were and constructively pendency suit was by notified of the of the publication April term, an order returnable to April during on court; and 1918, of term said judgment plaintiff was 8, 1918, rendered favor in the tax suit for the sum the amount $3.85, alleged delinquent penalties costs, and and foreclos- tax, OF MISSOURI, SUPREME COURT
ing alleged 7, therefor; lien of State on June special sold land was issued and the execution 1918, public August to the defend- sale, at 1918, thereunder George A. Frank Dent Dent sum J. and ants thereupon exe- made the sale $48; sheriff who and convey pur- purporting land said cuted a deed anything plaintiff never knew about chasers. The judgment her therein or sale of rendered tax suit, until before a few months she instituted thereunder, this suit. alleges: petition further tax
“That the records of said court in said circuit proceedings had on face that all of the suit show their regular legal binding all in parties on said tax suit and and face on further show their thereto; said records binding, is and said therein valid said and tax further on their face that said sheriff’s record show legal fully binding and deed aforesaid and and valid conveys simple completely legally title and and the fee estate J. Frank defendants, and to real said said A. Dent,- and Geo. said Dent but following: void is in fact for the reasons “ by paying (a) R. tax A. collector, Plaintiff day Stephens, on the 6th all the taxes, March, 1917, tax collector and interest which said demanded costs being up said to that ex- her as real estate date, due may tinguished any lien the Missouri have had State of estate; real and time the tax suit herein- at .said prosecuted before mentioned instituted at and and real to said Frank time said estate J. sold existing against there was lien Dent and Geo. A. Dent whereby real estate could said real estate legally equitably sold. receiving
“(b) The action collector in all interest costs due delinquent unpaid on and said real estate omitting failing, refusing to credit the tax *5 TERM, OCTOBER Mo.]
Rogers Dent. r. kept by payment, Mm with such tax books books and back afore- causing tax suit be instituted and thereafter been knowing taxes had he all such said, did on and Missouri lien of the and that the State extinguished, consti- all had been said real estate therefor prosecut- plaintiff; and his actions on this tuted a fraud ing causing be sold real estate to and said said suit plaintiff; and on fraud hereinbefore set out constituted obtaining afore- recorded as his actions plaintiff; by reason said a fraud this constituted plaintiff her record been divested of all has this which to said record title said real estate title in and and and Frank Dent J. real has said estate become vested . . Greo.A. Dent. county attorney said and collector and
“That said plaintiff prosecuted in that said tax suit for said sheriff knowing estate aforesaid that all suit sold said real and they only petition and the prosecuted were true facts stated wrongful and unlaw- same and committed guilty wrongful and unlawful and were ful acts wrongful mentioned for and commissions hereinbefore obtaining purpose for themselves certain unlawful collected fees commissions reason of and their tax suit as aforesaid. conduct said reasonable real “That cash value of the said all times mentioned at hereinbefore was and is estate $1000; than now of not less J. Frank defendants, only G-eo.A. bid at Dent and Dent the sale held shockingly grossly amount is $48; that in- adequate price for said real estate such as shock this of conscience, itself was sufficient to warn pro- that there said defendants fraud part of said of said curation county in torney, tax suit said collector said and said at- sheriff. SUPREME COURT OF r. hereby offers “Plaintiff has offered and heretofore *6 A. refund to the Dent Geo. defendants Frank and J. any paid by estate, Dent real all them- on said and taxes pay- together with date of all interest thereon from the action, ment in of such taxes to the date of any, as soon as the ascertain- if thereof, amount shall by ed this court.” and owned
The answer defendants admitted that simple claimed have title in described fee to the land petition allegations but other therein. It also all good purchased in land that averred defendants they knowledge any faith without if such facts, alleged plaintiff’s they believing petition, in that were, get good up title. It a further affirmative set by for defense a Court rendered the Circuit quiet County, Dent December in an action'to 5, 1919, plaintiff brought by against title the defendants herein by duly adjudged (plaintiffs which it was that defendants therein) legal equitable were sole and owners said plaintiff (defendant suit) land that in and said right, and forever interest or estate title, therein, quieting land in the the title said defendants and bar- ring precluding and herein from thereafter any right asserting or title thereto-. reply
The abstract the record shows that not it but does out or its nature. filed indicate Plaintiff in evidence the entire introduced record proceeding, including judgment, the tax the issuance special return execution and the and sheriff’s deed purchasers to the at the sale thereunder, —all petition proceedings that showed, avers, as the “were regular legal parties binding* thereto” and fully legally that the “sheriff’s tax deed conveys simple completely the fee title* in and to real to the defendants.” estate also She introduced tending county paid that evidence to show state she alleged petition, through in land her County County Treasurer of Dent her who acted as agent. living that she She testified had been Hiawatha, 1921. Mo.] TEEM, OCTOBEE years; that she owned about twelve Kansas, situated; controversy, it was but did know where been told it, that but she for what $500 thought con- it worth the value her she $1,000, others chiefly that she sisting it; and timber that was on anything sale never about the suit'or knew December, her until time land some substance The defendants each testified engaged buying partners land and had years, County then Dent ten owned at tax sales average price they had acres; about 25,000 acre; at such sales was one dollar belonged controversy that in the class of land to which fifty acre when all more than not worth cents an *7 very in off; that the land timber been cut suit poor than timber on it and was worth more one dollar not already entirely by an it but was surrounded land acre, bought they by they the time and that at them; owned having paid, nothing been knew about the but delinquent supposed they contrary land or the testimony sale. Their to the not offered for question in in Dent and similar lands value of by County Bennett, E. W. corroborated of Mr. was engaged attorney in the real at also who Salem estate business. put in evidence the record a suit also in
Defendants brought by quiet controversy, the land in them title to of Dent Court term, 1919, to the November Circuit County, plaintiff in this case in which the was made duly by publication party She defendant. served appear proceedings or answer. All of but did regular every respect. The seem to suit plaintiffs petition alleged were the owners, simple, title thereto and of asserted that fee prej- title adverse and some that the defendants claimed prayed plaintiffs, that of a decree deter- udicial respective settling quieting defining, mining, parties plaintiffs rights, estates interests and judgment rendered December 5, defendant. findings, setting, out court’s recites: after SUPREME COURT OF adjudged it is considered, “Wherefore and decreed by the real court that the title to above described said they plaintiffs simple, state and that is vested fee estate; are the absolute owners of all said real right, in- defendants claim, have no or estate title real estate terest, whatever or to said any part any lien thereof, or and that said de- thereon; precluded asserting fendants, and each are from them, making any or claim real whatever, estate, any part thereof.”
In the instant case the court found the issues plaintiff judgment and set aside the tax sheriff’s and the pursuant deed made to the execution sale thereunder “on ground that the taxes had been before the suit inadequacy price paid pur- was filed when judgment at chased the tax sale.” From such the de- prosecute appeal. fendants Many questions are in their discussed counsel essentially but briefs, reduce themselves to these (1) three: through Was obtained (2) fraud? Is entitled to relief ground inadequacy price paid for the land at (3) precluded the execution ? and raising Is sale she questions by these quiet in the suit to title? Of these in order. respect charged,
I. prov With to the fraud facts *8 merely year en were these: The taxes the for .1916were county the 1917; collector March 6, he failed to payment year credit the on tax the books, a later, through judgment attorney, prosecuted his final instituted to special
a suit for their collection. In due course judgment; execution issued on the the land was sold a purchaser. thereunder and sheriff’s deed executed to the give These naked facts do not to in- rise the attorney ference that the his collector, and the Sale: Tax Payment of sheriff each knew that the taxes had been Tax Before knowing collusively bringing and so acted Suit. prosecuting judgment the to suit Mo.] 292 TERM, OCTOBER effecting in- to thereunder, the order secure a sale of charged incident thereto the fees and commissions conclusively petition. established But if the evidence knowledge of that the fact they conscious acted with paid, merely fraudu- it been show a procurement in the and not fraud lent of action cause ground judgment, which alone would afford sought. equitable [Hamilton McLean, relief here worthy it is of note that the Mo. 678.] In this connection judg- gave judgment set the tax below chancellor who ground obtention, not fraudulent ment its aside, paid before the tax suit been “the taxes had but because previously paid, But the taxes been was filed.” if in- defense should that was a matter of ground terposed tax It afforded no in the back suit. grant equity setting judgment courts do aside; party purpose giving the defeated such relief opportunity merits of case. to heard on the a be second 268; 264 Mo. McDonald v. McDaniel, [Shemwell Betts, Company, 193 Lumber Evarts v. Mo. 172, 176; Mo. court ac- 433.] And the rule is the same whether judg- quired proceeding jurisdiction in the in which the by by publication, sought per- aside ment is to be set judg- In either case sonal the defendant. service except by equity for fraud ment is unassailable bill procurement thp [Shem- itself. very supra.] v. Betts, well in this could elected, so case
Had she aside secured have had doubt payment plaintiff’s right plead defense of to her petition by proceeding, filing in that cause of action [Secs. 1532, R. S. 1539, under the statute. for review pursue for the reason, did not course 1919.] She obviously, interest in land as in- defendants’ proved purchasers, would not if such be, nocent judgment. prejudiced setting aside of the Mangold Respondent Bacon, seems think that v. that case this case. But is decisive rightly understood does not contravene rule, *9 OE SUPREME COURT
Rogers Dent. setting ground equitable an fraud that constitutes judg- procurement the of aside a is fraud action. of distinguished the cause ment from fraud as in- the after j>ust landowner, mentioned the In case applied col- to the taxes, for back stitution of the suit interest and costs, of lector for full amount gave the paid it upon being given amount, Notwithstanding payment, such suit no further attention. caused prosecuted to the suit the collector pay- It was held that be sold execution. to an carried case, the circumstances of under ment, dismiss implied understanding collector would that the thereby believe to led was suit; defendant appear unnecessary make a defense liim it prosecution of the suit and that continued therein; understanding amounted to fraud in violation of such nothing in the judgment. There is the concoction of be similar conclusion can a facts of this case drawn. of entitled relief because
II. If the is price inadequacy it must land, inadequacy ground evidence does alone, appearance any un- of fraud or circumstance disclose tending cause the sale in connection fairness inadequacy. supra, Mangold it in effect Bacon, In held ground equity grant relief sole court of aggravated inadequacy cases, in extreme and where open. relief case other avenue of In that excerpt opinion Don- from the Gruinan Inadequacy quoted of Price. approvingly is nell, perhaps correct it affords statement any followed court as can be found rule “ reported Inadequacy It is as follows: cases. justify price setting alone will not aside under sheriff’s sale of real estate execution, unless the price inadequate as to shock moral so sense and outrage pro- Then the conscience. courts will interfere to Mo.] TERM, OCTOBER *10 justice.” The instant case does mote the ends of according contrary, the fall to rule; within the approximately weight price paid was evidence, alleged petition, land the land. As value ac- was uninclosed, “wild, uncultivated, possession had Plaintiff tual of no one.” and visible unacquainted wholly its with never seen it she vicinity. in the same value lands or similar values testimony In estimate of its value her she based her observed that her, what others told but it will be she such had obtained none of those from whom she called is true that she said information to the witness stand. It paid and that is evidence land, she some $500 alleged petition she she its value. her However, testimony in her contented while she “cash,” $500 merely leaving saying that she herself $500, with exchange something gave in that she inference that she regarded equivalent clear value. It is of $500 as question from the whole that as a evidence prac- vicinity lands of the character its same tically them cut no market after the timber on value being constantly sold off, culled, bringing one fifty for at sale cents per price paid dollar one-half acre. As the controversy average paid for similar land in was regarded, all the circum- sales, lands tax it cannot at shockingly inadequate. stances considered, respect we have reached, conclusions adequacy validity of the dispose price of the sold, case, unnecessary judg- the effect render it consider quiet title. Prom ment in the suit to those conclusions court should it follows the circuit It so ordered. Small, G., concurs; reversed. Broivn, he G., absent. opinion foregoing Rag-
PER CURIAM: The adopted hereby ppinion land, Ci, is court. judges All of the concur.