Jamison v. Harvey

REYNOLDS, P. J. (after stating the facts).— Section 219, pp. 1206-1207, Wagner’s Statutes, which is — 150 — section 220, p. 129, Sessions Acts, 1'872, and which.is the section referred to as section 221, provided, in substance, that if the holder of a tax deed be defeated in an action against him for the recovery of the land sold, the successful claimant shall be adjudged to pay such party claiming under the tax deed, the full amount of all taxes paid by the purchaser on such land at the time of the purchase and all subsequent taxes paid by him, together with the amount of the redemption money provided for by law and interest for the whole amount of such taxes from the time of the payment thereof, at the rate of ten per cent per annum, “which judgment shall be a lien upon the real estate in controversy and may be enforced by execution as in other cases of judgments and decrees of said court.” It is contended by the learned counsel for the appellant in this case, that the judgment referred to and sued on is a personal judgment as well as a charge against the land and what is really sought in this action seems to be to recover a personal judgment against these defendants for the amount of that judgment then rendered and for the accrued interest thereon from the date of its rendition, although that theory is hardly compatible with the demand for judgment set out in the amended petition upon which the case was tried, which demands, as will be noted, judgment for the amount, “and that such judgment, when rendered, will be declared a charge and lien on said land.” But the case has been tried in the circuit court by each side and presented to us upon that theory. That is to say, it was tried and is before us on the theory that it is a suit on an unpaid personal judgment, to recover the debt evidenced by the judgment. It is argued by counsel for appellant, that although the judgment rendered is not in form a personal judgment, yet the statute of 1872, under which it was given, controls and directs the character and the extent of the judgment, and that this statute determines the contract between the parties to the judgment and becomes — 151 — a part of it; that the manner in which it shall be executed is prescribed by the statute and any erroneous direction or attempt to direct its force or effect does not affect the force or manner of the execution of the judgment; that the judgment must be given the force and meaning and effect which the law gives it, when construed in connection with the law under which it was rendered. We agree with this contention of counsel, in so far as he argues that the law directs the force and mode of enforcement of a judgment and that it is not material that the judgment should, in itself, set out either its force or the mode of enforcement. [Houcks v. Cross, 67 Mo. 151; Crook v. Tull, 111 Mo. 283, 20 S. W. 8.] But we do not agree with the conclusion which he draws, that this section of the statutes of 1872 contemplates a personal judgment. This litigation has been going on between these same parties over this same land and their respective titles to it, for a number of years and has been before the court several times. Under the title of Dameron v. Jamison, it will be found reported in 143 Mo. 483, 45 S. W. 258. There Judge Williams, in referring to this part of the judgment awarding this plaintiff the amount paid out by him by way of taxes, etc., on the land says, at page 492: “The court, as authorized by the statute, gave him a lien upon the land for the taxes. paid.” Under the title of Jamison v. Martin, 184 Mo. 422, 83 S. W. 750, another phase of this controversy was presented before the Supreme Court, and Judge Marshall, who delivered the opinion of the court, having before him this part of the judgment now relied upon, says, at page 430: “The judgment in the former case here pleaded was not upon condition. It did not provide that the plaintiffs therein should have restitution of the premises upon condition of a prepayment by them in a specified time of the taxes the defendant had paid. On the contrary, that judgment awarded the possession to the plaintiffs, and charged the land with a lien — 152 — for the taxes the defendant had paid. Each, therefore, was entitled to an immediate execution for the enforcement of the portion of the judgment which was in his favor and neither was obliged to wait until the other first acted. All that remained for the defendant to do under the judgment was to ask for the issuance of the special execution, ordered by the judgment, and thereby to collect the judgment. This could have been done by the defendant at any time during the life of the judgment. It is his own fault if he did not do so.” We can come to no other conclusion, with these two cases before us, and in the light of the construction that has always been placed upon our revenue law, than that this judgment originally entered in favor of the plaintiff here, defendant in that suit, was not a personal judgment against these defendants, but was a judgment in rem. We so understand the section of the statute before referred to. So construed it is in harmony with the spirit which has always prevailed in our revenue laws, that is to say, that judgment for taxes, in tax suits, while in form judgments against the defendants in the suit, for the amount of taxes, interest, penalties and costs, are judgments in rem and not in personam. [Neenan v. City of St. Joseph, 126 Mo. 89, 28 S. W. 963; State ex rel. Hayes v. Snyder, 139 Mo. 549, 41 S. W. 216.] Nor is there any difference in the effect and force of these judgments, whether the defendants are personally served and appear, or where the defendants are brought in by publication of notice only and do not appear. In either case, the judgment goes, so far as concerns its enforcibiiity, against the land alone. Herein they differ from those cases wherein it is said that while the proceeding and judgment are in rem, and cannot be enforced against the person, or outside of the jurisdiction of the court in which they were rendered, unless the defendant has appeared and submitted himself to the jurisdiction of the court, yet if he has appeared, that while the proceeding may have been originally in — 153 — rem, yet if there be a judgment for the debt and against the res, and also over for the debt, if on sale of the res the judgment for the debt is not satisfied, the defendant can be held for the difference; in such case the judgment is both in rem and ad personam. But as we understand the whole theory of our revenue laws, the lien which the State has for the taxes is against the land, and the judgment is a lien against the land and not against the owner, and cannot be made on general execution against the owner but only on special fieri facias which the state has for the taxes is against the land, this section of the statute to do is to transfer to the purchaser at the tax sale the lien of the state for the taxes, and the purchaser at the tax sale can recover only what the state could, namely, a lien against the land. [Carman v. Harris, 61 Neb. 635.] That is what we understand is held by our court in Rowe v. Current River Land & Cattle Co., 99 Mo. App. 158, 73 S. W. 362, where this same section 219 of the Act of 1872 is considered. As noted in this last case, this section 219 of the Act of 1872 was dropped out of the amended general revenue law adopted in 1877, the latter with various amendments being our present law. What is now section 9304, Revised Statutes 1899, appeared subsequently in its present form in the Act of 1877. Very clearly it makes the judgment a lien on the land alone. While we have no longer in our statutes what was formerly this section 219, we have provisions somewhat along the same line in the Act of March 6, 1903, Laws 1903, p. 254 (sections 9319-1 and 9319-2, Ann. Stat. Mo., 1906), which, in substance, provide that when a decision adverse to the defendant claiming under a tax sale is rendered, that the court shall adjudge by its decree the amount of money due the defendant on account of the taxes and interest thereon paid out under his tax purchase or tax title, and the amount so found “shall be and constitute a lien upon the lands recovered or in controversy.” This is in line and in harmony — 154 — with tbe spirit of tbe revenue law that taxes are liens against tbe land and not a personal debt of tbe land owner. These two sections 'of tbe Act of 1903 bave been before our Supreme Court in Burkham v. Manewal, 195 Mo. 500, 94 S. W. 520; Haarstick v. Gabriel, 200 Mo. 237, 98 S. W. 760; Stewart v. Lead Belt Land Co., 200 Mo. 281, 98 S. W. 767; Manwaring v. Missouri Lumber & Mining Co., 200 Mo. 718, 98 S. W. 762; and before this court in Petring v. Current River Land & Cattle Co., 111 Mo. App. 373, 85 S. W. 933, and while tbe point here involved, was not in decision, there is no intimation that tbe act goes any further than to subrogate tbe purchaser to tbe lien of tbe State. Tbe plaintiff himself in this case practically concedes tbe point when be attempts to extend his right to a judgment beyond tbe plaintiffs against whom it was rendered in tbe first suit and to bring within its force and effect others who were not partes to that case but who bave since acquired an interest in tbe land, and dismissed as to Davis who bad parted with bis interest. Above all, this very judgment does not purport to be a personal one, but is one against the land itself. We know of no case, bave been referred to no authority, that authorizes a suit on a judgment in rcm. Tbe sole remedy for tbe enforcement of such a judgment, if it is still alive, is by special execution against tbe res. Without going further into tbe questions raised by counsel for tbe respondent as to es-toppel, and treating this case on tbe theory upon which it was tried by tbe lower court, that is to say, as an action on a judgment we hold to be in rem alone to recover a personal judgment against these defendants, we think the conclusion arrived at by tbe trial court is correct and that its judgment should be affirmed. It is so ordered. All concur.