State ex rel. Lehner v. Fullerton

Williams, J. This is a suit to enforce a lien for taxes for the years 1884 to 1889, inclusive, upon certain lots in the city of Cape Girardeau, now belonging to defendant. These lots were not assessed at the regular time for making assessments for those years, but were erroneously omitted from the assessor’s books. The defendant bought them at a sale under a deed of trust in the year 1889. The trustee, at defendant’s request, inquired of the collector whether there were- any delinquent taxes upon the property, and was informed that there were none. He repeated the collector’s statement to defendant before the latter purchased at the trustee’s sale. The taxes sued for had not then been levied, as the property had been omitted from the assessor’s books as above stated, and the information given by the collector was correct. The lots, after the sale to defendant, were, in the year 1890, assessed for the years previously omitted, in accordance with the provisions of section 7562 of the statutes, and the taxes sued for were levied under said assessment. Judgment [686] was rendered in the lower court for plaintiff, and {defendant has brought the case here. I. It is contended that the assessor failed to call upon defendant for a list of his property, in accordance with sections 7531 and 7532 of the Revised Statutes of 1889, before assessing the lots for the omitted years under section 7562. Plaintiff insists that the two sections first mentioned have no application to an assessment to cover previous omissions. He also urges, and in this we think he is correct, that this record does not demand, or, in fact, authorize the determination of that question. The tax bill is, by statute, made “prima facie evidence that the amount claimed in said suit is just and correct.” 2 R. S. 1889, sec. 7682; State ex rel. v. Schooley, 84 Mo. 447. No objection is made that said tax bill is not in proper form. It is not necessary then for plaintiff to go further and show that all steps taken by the assessor were regular. The presumption, in the absence of evidence to the contrary, is that the officer did his duty. State ex rel. v. Wayne Co., 98 Mo. 362. It devolved upon defendant to show any omissions in that behalf after plaintiff had presented proof, which, under the statute, made a prima facie case. The only testimony offered by defendant upon this point was that the assessor had said to a witness that he did not call upon defendant for a list. This clearly was mere hearsay and properly excluded. II. The action is not barred by the statute of limitations. The assessment was made in 1890, and this suit was begun July 31, 1893. A suit for taxes maybe brought at any time within five years after the tax becomes delinquent. (2 R. S. 1889, sec. 7692). Our examination of the statute has not enabled us to find any other provision limiting the time within which tax suits may be brought; or that any time is fixed within [687] which an assessment for omitted years must' be made. Counsel have not called our attention to any such statute. III. The defendant further contends, that, as he purchased the lots without any notice whatever that they had not been properly taxed in previous years, and after information had been conveyed to him of the collector’s statement that there were no unpaid taxes upon the property, it would be inequitable to charge the lots in Ms hands with this lien; that as the officers of the State had negligently - omitted to make the assessment at the proper time, the State should suffer by their laches, rather than an innocent purchaser. The statute does not confine the power to make assessments for omitted years, under section 7562, to cases where the ownership of the property remains unchanged. “The law is not so written.” It is not’ claimed by the defendant, that the legislature did not have the constitutional power to enact this statute. (Cooley on Tax. [2 Ed.], sec. 309; Tallman v. Janesville, 17 Wis. 71; State ex rel. v. Railroad, 101 Mo. 136; Railroad v. Franklin Co. Ct., 57 Mo. 223.) It is not for the courts to determine its expediency. The power to make assessments for the years during which property may have escaped taxation is given in express terms. There is nothing in the statute to exclude from this provision real estate that may have been sold in the meantime. If such limitation is desirable, it must come from the law making power and not from the courts. - It may also be said, that the purchaser must be presumed to know, when he buys real estate, that it can thereafter be assessed and charged with taxes previously omitted, and that he can protect himself by a proper examination. The Supreme Court of Wisconsin in discussing a similar objection uses this language: [688] “Under these provisions it is very apparent a tax may be levied and collected upon lands which had by purchase become the property of persons other than those who owned them when the tax should have been paid. Undoubtedly analogous provisions will be found in many other revenue laws of our sister States, which inevitably operate oppressively in individual cases. And still this power of correcting defective assessments, on the part of the public authorities, is a salutary and highly beneficial feature of our systems of taxation. It is not to be abandoned because in. some instances it produces individual hardships. Every taxpayer is interested in having the property list as perfect as possible, and therefore power to correct omissions and inequalities in the rolls is intrusted to some of the taxing officers. Again, the respondents must be assumed to have known when they purchased these lands that the taxes formerly assessed against them had been declared void, and they purchased with full knowledge of the power of the legislature to provide for a reassessment of them.” Tallman v. Janesville, 17 Wis. 71; Cooley on Tax. [2 Ed.], p. 311. The trial court properly held that the lots were chargeable with the taxes sued for, and its judgment is affirmed. Brace, P., J., and Robinson, J., concur.