State ex rel. Flentge v. Burrough

174 Mo. 700 | Mo. | 1903

BURGESS, J.

This is an action by tbe collector of Cape Girardeau county for back taxes for' tbe years 1894, 1895, 1896 and 1897, on certain lands described in tbe .petition, amounting at tbe time of tbe trial to two hundred and seventy-seven dollars and sevenfy-eigbt cents, for wbieb plaintiff bad judgment and tbe enforcement of its lien against tbe land for tbe payment of tbe same. Defendants appeal.

Tbe petition is in tbe usual form, and describes tbe land by metes and bounds.

Tbe answer is a general denial.

Defendants admit that Mrs. Annie K. Burrougb is tbe owner of tbe land described in tbe petition.

Tbe taxbill upon wbieb tbe action is based is as follows:

The case was tried by a jury, and when the taxbill was offered in evidence by plaintiff, defendants objected upon the ground that “the description contained therein is so vague and indefinite and uncertain, it will not support a judgment.” The objection was overruled and exception duly saved. The ruling of the court in this regard is the principal ground relied upon by defendants for a reversal of the judgment.

By section 7555, Revised Statutes 1889, every county assessor is required to make out an assessment book, called the ‘£ real estate book, ’ ’ containing all lands subject to assessment. The third column shall contain an accurate description of the land by the smallest legal subdivisions, or by smaller parts, lots or parcels when sections and the subdivisions thereof are subdivided into parts, lots or parcels; the fourth column shall contain the actual cash valuation of each tract. '

By section 7552, Revised Statutes 1889, it is provided that “each assessment of real estate so made shall be the basis of taxation on the same for two years next succeeding. ’ ’ As the statute requires an accurate description, one that is correct is essential to a valid assessment, in the absence of which a valid tax can not be assessed. [Abbott v. Lindenbower, 42 Mo. 162; State ex rel v. Thompson, 149 Mo. 441; State ex rel v. Mission Free School, 162 Mo. 332.]

The City of Jefferson v. Whipple, 71 Mo. 519, was an action by the city to recover city taxes, and to enforce a lien against “part of inlot No. 331 on the plat of said city,” and it was held that the description of the property was so vague that no action could be maintained either to enforce the lien, if one existed, or to recover the taxes. The court said, “How is it possible from the description to ascertain what part of the lot is chargeable with the taxes, or the lien? A deed conveying a part of a lot, or a tract of land, would convey no legql title to any portion of the lot, or tract. The petition in this regard was therefore fatally defective.” To the same effect is the case of the People v. Reat, 107 Ill. 581.

State ex rel. Wyatt v. Railroad, 114 Mo. 1, was an action to enforce the lien of the State for certain taxes alleged to be delinquent and unpaid on certain real estate belonging to defendant in Jackson county. The first three counts were for taxes on property described in the assessment, taxbill and petition as “the undivided half of G-illiss addition to the city of Kansas City, Jackson county, Missouri, except all that part thereof returned to and assessed by the State Board of Equalization.” The fourth and fifth counts were for taxes for the years 1886 and 1887, respectively, on property described in the assessment and taxbill, as, “All lots 5, 6, 7, 8, 9' and 10, block 28, lying outside of the right of way, West Kansas addition number 1,” and the petition in the same language with the addition of the w;ords.“of defendant,” after “right of way,” and it was held that as an assessment was the basis of the tax, an accurate description of the land was necessary to a valid assessment of it, and that the description was too indefinite and uncertain to authorize the enforcement of the tax lien, and that extrinsic evidence was inadmissible to cure it. Held, also, that a description of “all of lots 5, 6, 7, 8, 9 and 10, block 28, lying outside of the right of way, West Kansas addition number 1,” was likewise fatally defective.

■ It is thus evident that there was no valid assessment of the property in question for either of the years for which taxes are sued, which was absolutely necessary as a condition precedent to the lawful exercise of the power of taxation in. this State. The fact that the petition correctly describes the land does not validate or cure the defective assessment and taxbill.

But the record discloses that the defendant Prank E. Burrough, husband of his co-defendant, furnished, the assessor lists of their property, in which the land in question was described as in the taxbill, and it is insisted by'plaintiff that by reason of. this fact tbey are estopped to object to tbe sufficiency of that description, and can not dispute the validity of tbe assessment, nor defeat tbe collection of tbe taxes. That defendants might be estopped from denying tbe ownership of tbe land described in tbe taxbill by reason of tbe fact that tbey furnished a list of their property including tbe land in question in which it was described as in tbe taxbill, under certain circumstances, is doubtless true, but that tbey are not estopped in this proceeding by reason of that fact from denying that tbe description of tbe land in tbe taxbill is too vague and uncertain upon which to base a judgment and enforce a lien against tbe land for tbe taxes, is equally clear. Tbey could not in this proceeding supply by anything tbey may have said or done that which was essential to a good and valid assessment,. that is, an accurate description of tbe land, for want of which the assessment and taxbill are void.

Por these intimations tbe judgment is reversed.

All of this Division concur.