BENNETT v. CUTLER

BARRETT, Commissioner.

In this suit to quiet the title to a lot in Kansas City the trial court found all the issues in favor of the plaintiff, George L. Bennett, and quieted the title to the land in him. The plaintiff, Bennett, has title through a deed from the Land Trust of Jackson County. The defendant's, Fred P. Schell's, title is represented by a city tax deed and a deed from a prior owner. Upon this appeal the defendant, Schell, claims that the Land Trust Act is unconstitutional, that the city taxes were illegally assessed and that the judgment of foreclosure was illegal and void and, therefore, the trial court erred in quieting the title in Bennett.

The appellant has failed to properly raise and preserve the alleged unconstitutionality of the Land Trust Act, Mo.R.S. 1949, Secs. 141.210- 141.810, V.A.M.S., and the question is not, therefore, reviewable in this court. In his answer to the quiet title suit the constitutionality of the Land Trust Act is attacked in this language: "Further answering, defendant states that the purported sale to plaintiff is void for the reason that the Land Tax Collection Act is unconstitutional and void, being contrary to Article 4, paragraph 53, sub-division 25, Missouri Constitution 1875, and Article 3, paragraphs 13, 40 and 41, Constitution of Missouri 1945. Further answering, the said Land Trust Act is unconstitutional and void, being contrary to Article 6, paragraph 8, Constitution of Missouri 1945, and Article 3, paragraphs 40 and 41 of said constitution." There were no objections to the introduction of evidence, there were no requests for peremptory directions, and throughout the trial, so far as appears from the record, it was not claimed or pointed out to the trial court how or in what manner the act was unconstitutional. The unconstitutionality of the act is not mentioned in the defendant's motion for a new trial. In these circumstances the constitutionality of the act is not reviewable by this court. Syz v. Milk Wagon Drivers' Union, Local 603, 323 Mo. 130, 18 S.W.2d 441; Motchar v. Hollingsworth, Mo.Sup., 162 S.W.2d 805; Crescent Planing Mill Co. v. Mueller, Mo. Sup., 117 S.W.2d 247, 118 A.L.R. 709; Lieber v. Heil, 325 Mo. 1148, 30 S.W.2d 143; Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 113 S.W. 1108; Kansas City v. Reed, 358 Mo. 532, 216 S.W.2d 514.

The claim that the city taxes were illegally assessed and that therefore the foreclosure was illegal and void is based upon these circumstances: The Constitution of 1875 provided for the levy of taxes for county, city, town and school purposes on all subjects and objects of taxation "but the valuation of property therefor shall not exceed the valuation of the same property in such town, city or school district for State and county purposes. * * *" Const. Mo. 1875, Art. X, Sec. 11, V.A.M.S. When the tax bills were introduced in the land trust suit they showed that the city taxes for the years 1939, 1940 and 1941 were $488.00, $488.01 and $474.08 respectively, while the state, county and school taxes for those same years were $237.61, $162.65 and $162.65. From this it is argued that it shows upon the face of the judgment that the city taxes for those three years exceeded the valuation permitted by the Constitution. In the first place, the tax bills in the land tax suit list taxes from 1933 to 1944 and specifically taxes from 1938 to 1944, and the appellant makes no complaint or objection to the taxes or to the valuations except for the three years.

But in addition to that fact, it must be kept in mind that the suit before this court and the one tried in the circuit court is a quiet title suit. Fred P. Schell, the appellant, was a named defendant in tax suit and foreclosure; he was named as the owner of the lot in question, and in this quiet title suit does not claim that he had no notice or that there was any fraud in connection with that suit. Although fully aware of the pendency of the tax suit and of the fact that he was a named defendant and the owner of the lot he defaulted and made no defense whatever to the tax suit or to the assessment and valuation or to any other matter as he could have under the act. "The main objectives of the legislation are summarily to foreclose long standing tax delinquencies on real estate, and to convey a marketable title by judicial decree, excluding any right of redemption and collateral attack." Spiteaufsky v. Hatten, 353 Mo. 94, 108, 182 S.W.2d 86, 94, 160 A.L.R. 990. In the tax suit the tax bill is prima facie proof that the tax described in the bill has been validly assessed and that the tax is unpaid and any person claiming any jurisdictional defect or invalidity in the tax bill or in the tax sale must allege the fact in his answer. Mo.R.S. 1949, Sec. 141.480, V.A.M.S. The claim in this quiet title suit that the valuation in the tax suit was illegal and rendered the proceedings void is a collateral attack on the judgment in the tax suit, Skillman v. Clardy, 256 Mo. 297, 165 S.W. 1050, and the defense or claim of improper valuation is now unavailable to the appellant Schell. State ex rel. Teare v. Dungan, 265 Mo. 353, 177 S.W. 604; South Missouri Pine Lbr. Co. v. Carroll, 255 Mo. 357, 164 S.W. 599; State ex rel. Gottlieb v. Western Union Tel. Co., 165 Mo. 502, 65 S.W. 775; Boyd v. Ellis, 107 Mo. 394, 18 S.W. 29; Hamilton v. Rosenblatt, 8 Mo.App. 237. In the cases relied upon by the appellant there was a direct attack upon the tax proceedings or tax judgments. State ex rel. Flaugh v. Jaudon, 286 Mo. 181, 227 S.W. 48; Center Building Co. v. City of St. Joseph, 108 Mo. 304, 18 S.W. 910.

The original records in the tax suit were offered in evidence and the judgment was entered on the 23rd day of February 1946. In the judgment the court finds all the necessary preliminary steps and that the tax bills are due and unpaid and "that the name as listed on each of the schedules hereinafter set out is the name to whom the tax bill was last listed or charged." The court then entered judgment for the plaintiff for the amount of the tax, together with interest, penalties, attorneys' fees and costs, and declares the priority of tax liens and forecloses the liens, and orders the land sold on the 28th day of November 1946. Publication is then decreed "commencing not earlier than six months after the date of this judgment," and the sheriff is ordered to make a full report of the sale. In conclusion, it was decreed "that this cause be continued for further proceedings pursuant to the provisions of the Land Tax Collection Act." On April 8, 1946, in a motion by the plaintiff, it was called to the court's attention that the sale had been set on a legal holiday, November 28, 1946, whereupon the court amended its judgment and ordered the sale on December 2, 1946.

Since the amended order was made more than thirty days, on April 8th, after the date of the original judgment, February 23rd, it is urged that under the Civil Code of Procedure the court had lost jurisdiction of the cause and therefore the entire proceeding was illegal and void. Mo.R.S. 1949, Secs. 510.310; 510.370, V.A.M.S. Supreme Court Rules 3.24, 3.25. On the other hand, the respondent, arguing from the analogy of the partition cases, urges that the judgment complained of is interlocutory and not final, Aull v. Day, 133 Mo. 337, 34 S.W. 578, and may therefore be amended at any time prior to the order of distribution. Colin v. Moldenhauer, 338 Mo. 827, 92 S.W.2d 601. There is no hard and fast rule for the determination of whether a judgment is final or interlocutory, 49 C.J.S., Judgments, § 11, p. 35, and, in our view, a determination of the question is not necessary to a decision of this cause. In many respects and for some purposes the judgment may be final. State ex rel. Maple v. Mulloy, 322 Mo. 381, 15 S.W.2d 809; Warren v. Manwarring, 173 Mo. 21, 73 S.W. 447. However, no provision of the Land Tax Act specifies or requires that the sale be held on a particular day or at a particular term of court as was the case in Schlafly v. Baumann, 341 Mo. 755, 108 S.W.2d 363 and Meriwether v. Overly, 228 Mo. 218, 129 S.W. 1. In this in rem proceeding it is contemplated that there may be an appeal from the judgment of foreclosure, Mo.R.S. 1949, Sec. 141.510, V.A.M.S., and, subsequently there may be an appeal from the order confirming or disapproving the sale. Mo.R.S. 1949, Sec. 141.590, V.A.M.S. After a hearing and judgment of foreclosure the court shall "fix the time and place of the foreclosure sale." Mo.R.S. 1949, Sec. 141.480, V.A.M.S. After the order of foreclosure and sale "the cause shall be continued for further proceedings, as herein provided", Mo.R.S. 1949, Sec. 141.500, V.A.M.S., as the decree in this cause did. The statutes contemplate a waiting period and redemption within six months, Mo.R.S. 1949, Sec. 141.520, V.A. M.S., and thereafter notices by publication, a sale by the sheriff and confirmation or disapproval by the court and an order of distribution. Mo.R.S. 1949, Secs. 141.540, 141.560, 141.580, V.A.M.S. So in many respects and for some purposes the order or judgment may be interlocutory. Barlow v. Scott, Mo. sup., 85 S.W.2d 504. But whether final or interlocutory the important thing with respect to the matter precisely involved her is that the statutes certainly invest the court with control over the sale and, in the absence of any other factor, the court has and retains jurisdiction of that phase of the cause and has the power to enter such supplemental orders as are necessary to effectively carry out and enforce its decree. In the tax suit involved here there were other orders and decrees respecting the sale, one disapproving a sale and finally an order of confirmation. It is not objected here that the defendant, Schell, by reason of the court's changing the date of the sale had no notice or that he or his rights were prejudiced in any manner. Subsequently there was publication and he in fact had notice of the date of the sale. In this tax suit and particularly as to the sale the court had jurisdiction of the subject matter and of the person of the defendant, Keaton v. Jorndt, 220 Mo. 117, 119 S.W. 629, when the changed order of sale was entered and the court's action in this respect in the absence of a showing of fraud or of prejudice is likewise not subject to collateral attack. Hamer v. Cook, 118 Mo. 476, 24 S.W. 180; Price v. Springfield Real-Estate Ass'n, 101 Mo. 107, 14 S.W. 57; Skillman v. Clardy, supra; 2 Freeman, Judgments, Sec. 850, p. 1799. See also Parker v. Clayton, 248 Ala. 632, 29 So.2d 139.

Accordingly the judgment is affirmed.

WESTHUES and BOHLING, CC., concur.