S.W.2d 363 (Mo. 1937), as follows: Exercise of the official action here involved is in derogation of private rights of property, disturbs vested rights therein, and deprives persons of their ownership of property; and this, under the Jones-Munger Act, by ex parte proceedings of a rather drastic and summary nature, based upon constructive notice. Id. at 366. (FN6) In light of our Supreme Court's repeated and emphatic commands that county collectors and tax sale purchasers follow the strict letter of Missouri law governing such sales, we seriously doubt that it intended, in Kennen and Beldner , to impose an actual knowledge/detrimental reliance requirement on delinquent taxpayer-landowners divested of their legal title thereby. We therefore hold that Stadium West was not required to prove it had actual notice of or detrimentally relied on the property description in the collector's published notice of sale as a precondition of receiving equitable relief under section 527.150. Point denied. In his second point relied on, Johnson argues that the trial court erred in entering its judgment invalidating the collector's deed on the ground that the notice of sale published by the collector contained an inadequate legal description of the subject properties because the judgment was either against the weight of the evidence or erroneously applied the law to the facts in that a legal description is sufficiently definite if one reasonably skilled in determining land locations can locate the real estate with the use of extrinsic facts and the information contained in the published notice indicated the section, township and range of the subject real estate, its acreage, and the fact that
it was located on the U.S. Highway 63 corridor, as well as the name of its record owner, who had conveyed the property to Stadium West. The legal framework governing this aspect of the case is built upon several interrelated Missouri statutes, most of which were new in the Jones-Munger Act of 1933. The foundational statute is section 140.530, RSMo 2000, which says, in relevant part: No sale or conveyance of land for taxes shall be valid if at the time of being listed . . . the description is so imperfect as to fail to describe the land or lot with reasonable certainty[.] See also section 140.150.2, RSMo 1994, which states, in relevant part: No real property shall be sold for state, county or city taxes without judicial proceedings, unless the notice of sale contains the names of all record owners thereof, or the names of all owners appearing on the land tax book and all other information required by law. (FN7) The "other information required by law" to be contained in a collector's notice of sale is specified in two other statutes. As applicable here, the first of these statutes, section 140.030, RSMo 1994, provides: Whenever any collector shall be unable to collect any taxes specified on the tax book, having diligently endeavored and used all lawful means to collect the same, he shall make . . . [a] 'land delinquent list', in which shall be stated the taxes on lands and town lots where taxes have not been collected, with a full description of said lands and lots, and the amount of taxes due thereon, set opposite each tract of land or town lot[.] The relevant portions of the second statute, section 140.170, RSMo 1994, are:
- The county collector shall cause a copy of the list of delinquent lands and lots to be printed in some newspaper
of general circulation published in the county, for three consecutive weeks, one insertion weekly, before the sale, the last insertion to be at least fifteen days prior to the fourth Monday in August.
- In addition to the names of all record owners or the names of all owners appearing on the land tax book it is
only necessary in the printed and published list to state in the aggregate the amount of taxes, penalty, interest and cost due thereon, each year separately stated, and the land therein described shall be described in forty acre tracts or other legal subdivisions, and the lots shall be described by number, block, addition, etc. . . . Finally, although it is quite lengthy and we do not set it forth in full, section 140.180, RSMo 1994, authorizes the use of certain letters, figures, and characters as shorthand in "all advertisements, notices, lists, records, certificates, deeds or other papers, required to be made by or under any of the provisions" of Chapter 140. Section 140.180.1. (FN8)
At the outset, we note that a tax deed which has been properly "recorded in the recorder's office before delivery" as provided in section 140.460.1, RSMo 2000, is to be considered "prima facie evidence . . . of the regularity of the sale of the premises described in the deed, and of the regularity of all prior proceedings, . . . and prima facie evidence of a good and valid title in fee simple in the grantee of said deed[.]" Section 140.460.2, RSMo 2000. As the Missouri Supreme Court observed in Mitchell v. Atherton , 563 S.W.2d 13, 17-18 (Mo. banc 1978), this means that such a deed is also "prima facie evidence of notice in compliance with the law because notice and sale would be 'prior proceedings' under sec. 140.460." Of course, this does not prevent an opposing party from attempting to overcome this prima facie evidence of regularity by offering its own evidence at variance with the title, id . at 18, which is exactly what Stadium West did here. See, e.g. , Nole v. Wenneker, 609 S.W.2d 212, 215 (Mo. App. W.D. 1980). (FN9) The language of section 140.530 "quite plainly indicates that the failure of a description to describe the land in question with reasonable certainty is a sufficient condition for invalidity[.]" McCready v. Southard , 671 S.W.2d 385, 389 (Mo. App. S.D. 1984). However, that language does not mean "that if the description does describe the land with reasonable certainty it will ipso facto be valid," because the other statutes set forth above may also come into play. Id . (emphasis in original). In Costello v. City of St. Louis , 262 S.W.2d 591 (Mo. 1953) (overruled on other grounds in Powell v. County of St. Louis , 559 S.W.2d 189, 196 (Mo. banc 1977)), the Missouri Supreme Court explained the relationship between the reasonable certainty standard set forth in section 140.530, the more particular requirements of sections 140.030 and 140.170, and the abbreviations authorized by section 140.180: Section 140.030 requires that the Collector's land delinquent list shall set out 'a full description of said land and lots' upon which taxes are delinquent. Section 140.170 provides that the Collector shall cause the publication of the list of delinquent lands and lots, 'and the land therein described shall be described in forty acre tracts or other legal subdivision, and lots shall be described by number, block, addition, etc.' Section 140.530 provides that, 'No sale or conveyance of land for taxes shall be valid if at the time of being listed . . . the description is so imperfect as to fail to describe the land or lot with reasonable certainty.' * * * Section 140.180 authorizes the use of certain abbreviations in land descriptions. We are mindful of the general rule that if the description is sufficiently definite and certain to enable one reasonably skilled in such matters to locate the land that it will be held to be adequate. But that rule is modified by the plain requirements of the above statutes that there be a full description by correct lot number, block and addition, and all with reasonable certainty. The description must be accurate, correct and definite even though abbreviations are authorized. . . . 'Full' as used in
Section 140.030 quite obviously means complete, entire, without abatement, perfect, but allowing of course for the use of the abbreviations authorized by Section 140.180. 'Described by number, block, addition, etc.,' as required by Section 140.170, requires that the lots shall be correctly given and referred to by number, block and addition, or subdivision. 262 S.W.2d at 594-95. Thus "a notice of tax sale must not only comply with the specific requirements of sections 140.030 and 140.170 but it must also describe the property with reasonable certainty" under section 140.530. McCready , 671 S.W.2d at 389 (citing Costello , 262 S.W.2d at 594-95). (FN10) This is not an idle or purely academic observation, as it "[i]t is readily conceivable that in a given situation the former circumstance may obtain while the latter may not." Id . Indeed, we think this is precisely such a case. That is to say, we think that while the notice of sale published by the collector arguably met the particular requirements of sections 140.030, 140.170.2, and 140.180, it nevertheless failed to meet the reasonable certainty standard set forth in section 140.530. In determining the legal sufficiency of the property descriptions contained in the notice of sale published by the collector in this case, we find the Missouri Supreme Court's decision in State ex rel. Martin v. Childress , 134 S.W.2d 136 (Mo. 1939) particularly instructive. In Childress , the record owner of a half-acre tract of Douglas County real estate, Mr. Childress, failed to pay the property taxes that had been assessed thereon. 134 S.W.2d at 137. The Douglas County Collector of Revenue, Mr. Martin, published a notice of sale containing a description of the real estate, which he planned to auction off at the upcoming county tax sale. Id . The land in question had a large building (Childress' house) on it, which substantially increased the value of the tract. After learning that Childress had threatened to remove the house from the property, Martin sought a temporary injunction preventing him from doing so, claiming, inter alia , that if Childress was allowed to move the house off the land, the land would then be worth less than the amount of back taxes owed by Childress. Id . The trial court granted the temporary injunction, which it later made permanent. Id . Childress appealed, arguing that since the property descriptions contained in both the collector's land delinquent list and the pending notice of sale were "wholly insufficient to support a valid [tax] sale," they were also insufficient to support the injunction. Id. at 138. Our Supreme Court agreed with Childress and reversed the trial court's judgment granting the injunction. Id . at
- The Court began its analysis by noting that in the deed originally issued to Childress by the land's previous
owner, the property was correctly described as follows: [B]eginning on rock corner on east line of NW 1/4 NW 1/4, Sec. 23, Twp. 27, range 17, 34 rods and 7 ft. north of
SE corner of said NW 1/4 NW 1/4; thence west 7 rods; thence south 11 and 3/7 rods; thence east 7 rods; thence north 11 and 3/7 rods to place of beginning, containing 1/2 acre. Id . at 137. The Court then observed that in both the collector's land delinquent list and the collector's notice of sale, the property to be sold was described in this abbreviated manner: "[P]art of NW 1/4 NW 1/4, Sec. 23, Twp. 27, range 17." Id. The Court first rejected the collector's contention that, because the land was correctly described in his petition for injunctive relief and he had shown at trial that it was, in fact, the land owned by Childress, "any defect in [the] description on the tax books or in the notice of sale" was cured. Id. at 139. (FN11) Then, quoting section 9958b of the original Jones-Munger Act of 1933 (now codified as section 140.530, RSMo 2000), which then, as now, provided "that 'no sale or conveyance of land for taxes shall be valid . . . if the description is so imperfect as to fail to describe the land or lot with reasonable certainty,'" the Court held that "a valid judgment for taxes could not have been obtained on the description here concerned, and if a valid judgment for taxes could not have been obtained, then certainly no one . . . could have interfered with defendant's removal of his house on the ground that such would jeopardize the collection of taxes against the tract upon which the house stood." Id. (FN12) Similarly, in Ijames v. Geiler , 783 S.W.2d 934 (Mo. App. E.D. 1989), the notices of sale published by the collector, the collector's deed, and an unrecorded trustee's deed all made reference to "Pt. Lot 21 .80 Acres, Survey #2991 School Dist. C-6 Road Dist #13." Id . at 937. The trial court entered a judgment setting aside the deeds and quieting title in the plaintiff, concluding that "the description in the notices of sale, the collector's deed and the trustee's deed did not describe plaintiff's property with reasonable certainty since they did not state which portion of Lot 21 of Survey 2991 was involved." Id . at 936. The Eastern District affirmed, explaining: The trial court found, and we agree, that this description fails to establish with reasonable certainty what portion of Lot 21 is conveyed. The legal description describes, at most, .80 acres of a 32 acre lot, without reference to which .80 acres are to be conveyed. Such a description fails to describe plaintiff's land with reasonable certainty and is, therefore, invalid under section 140.530. Id. at 937. (FN13) And so it is here. As in Childress and Ijames , the collector's published notice of sale does not describe the land which was to be sold with reasonable certainty because even though it refers to two 40-acre quarter-quarter sections, it fails to locate the tracts within them other than to say that they were somewhere in the northeast and north "PT"s thereof, respectively. As the trial court aptly put it, "if you could find the tracts of land in question, what 'parts' were
being sold?" Johnson cites three Missouri cases in support of his claim that the property descriptions contained in the collector's published notice of sale are adequate: Simmons v. Affolter, 162 S.W. 168 (Mo. 1914), Elsberry Drainage District v. Seerley, 49 S.W.2d 162 (Mo. 1932), and Schwartz v. Dey , 780 S.W.2d 42 (Mo. banc 1989). All are readily distinguishable. In Simmons , the collector brought suit against the record owner of the property in question for back taxes, ultimately resulting in a judgment foreclosing the state's tax lien. 162 S.W. at 168. The judgment was executed and levied shortly thereafter, when the county sheriff sold the real estate at auction and issued a tax deed to the successful purchaser. Id . On appeal, the Court held that the judgment of foreclosure, which described the Phelps County land in question as "No. of acres 80, S. 2 S. W. 4, section 21, Twp. 36, range 7," was not void for uncertainty as it properly described the real estate comprising the south half of the southwest quarter of section 21, township 36, range 7. Id. at 169. Elsberry was an appeal from a judgment imposing a tax lien for delinquent drainage taxes on four tracts of property, in which the defendant argued that the descriptions of the tracts set forth in the tax bill were insufficient to support the judgment. 49 S.W.2d at 163. On appeal, the defendant conceded that the description of the first of these four tracts contained in both the plaintiff's petition and the judgment itself correctly identified his property. Id . at 165. That description was as follows: "That part of the Northeast quarter of the Southwest quarter of Section 21, Township 52, Range 2 East, lying East and North of ditch right of way, being part of tract No. 10, Denny's subdivision, containing 19.99 acres." Id . at 164. The Court held that the description of the first tract contained in the tax bill (19.99 acres "NESW that Pt. Lying E & N of ditch R of W. being pt. Tract No. 10 D's SubD" in Sec. 21, Twp. 52, R. 2E), id . at 165, correctly identified that part of the northeast quarter of the southwest quarter of the designated section lying east and north of a ditch right of way, and was sufficiently definite to support the judgment imposing the lien. Id. at 166. However, in neither Simmons nor Elsberry (which were both decided prior to the enactment of the Jones-Munger Act) was the adequacy of a collector's published notice of tax sale at issue. Moreover, in both of those cases, unlike the one at bar, there was clearly no material variance between the property descriptions in the record owner's deed and the express terms of the judgments that were appealed; no highly irregularly-shaped fractional quarter-quarter sections were involved; and the descriptions there left nothing to pure speculation or conjecture. Meanwhile, Schwartz has absolutely nothing to do with this case, since, as pointed out in the Court's opinion: "Plaintiffs do not argue in this appeal that the collector, in attempting to notify them of the tax sale, failed to comply with state statute. Instead, they contend the notice provided by the collector violated the Due Process Clause of the Fourteenth Amendment." 780 S.W.2d at 44.
Johnson further argues that despite the deficiencies noted supra , the notice of sale published by the collector in this case is nevertheless sufficient in that it contains enough additional descriptive information for one reasonably skilled in such matters to locate the land. See Beldner, 451 S.W.2d at 78; Nat'l Cemetery Ass'n of Mo. v. Benson , 129 S.W.2d 842, 845 (Mo. 1939). First, he points out that, as required by section 140.150.2 and Art. 10, section 13, the notice of sale contained the name of the delinquent record owner, Scott W. Gibson, who had originally conveyed the property to Stadium West in December 1995. But as noted supra , that is merely a necessary (but not sufficient) statutory condition for a valid notice of sale. Second, he asserts that the notice of sale correctly recited the fact that the "property consisted of 27 acres, the precise amount deeded to [Stadium West] by Scott W. Gibson." However, the trial court correctly ruled that the 27-acre figure was not a valid point of reference because it was contradicted by the terms of Stadium West's unrecorded general warranty deed, which contained no acreage figures for either of the parcels conveyed by Gibson. We further note that the redemption notices sent by Johnson recited that the first parcel was a "14.95-acres tract" and the second parcel was a "10.15-acre tract." This adds up to 25.10 acres, not the 27.00 acres stated in the collector's published notice of tax sale and in the tax deed itself. It therefore appears that Johnson himself was uncertain as to the total acreage of the properties he had purchased at the tax sale, which is all the more reason to reject his argument. Third, Johnson argues that the notice of sale correctly recited, using both statutorily authorized and unauthorized (although decipherable) abbreviations, that the subject properties were located within the Southeast Quarter of the Northwest Quarter and the Southwest Quarter of the Northeast Quarter of Section 24, Township 45, Range 12. While this is true, the cases discussed supra clearly hold that even when abbreviations authorized by section 140.180 are used, partial descriptions such as this are simply not specific enough to describe the real estate to be sold with reasonable certainty. See also O'Day v. McDaniel , 80 S.W. 895, 896 (Mo. 1904) (holding that while the use of abbreviations is authorized by what is now section 140.180, there is nothing in the law "permitting anything less than an accurate or correct description of the real estate"). Fourth, Johnson claims that since the notice of sale began with "US 63," it showed that the subject real estate "was along the U.S. Highway 63 corridor." While that is certainly one way to interpret the notice of sale, the fact remains that as published by the collector, it does not allow the reader to determine whether both or just one (and if just one, which one) of the parcels to be sold had some connection to U.S. Highway 63, and what that connection was. Fifth, Johnson argues that by using the "inverted grantee-grantor index" at the Boone County Recorder of Deeds office, and "armed with the four pieces of information outlined above, a reasonably experienced researcher at the Recorder's office could have found the subject deed to the 27 acres in five minutes in the undersigned's opinion." This opinion is completely unsubstantiated
in the record. Finally, in his reply brief, Johnson claims that if the collector's published notice of sale in this case is held to be invalid, "it would appear to call into question a great many tax sales." Whether or not this claim is true, the fact remains that for the reasons stated in our discussion of Johnson's first point relied on, "[t]ax sales have always been carefully scrutinized by this court." Bussen Realty Co. v. Benson , 159 S.W.2d 813, 814 (Mo. banc 1942) (overruled on other grounds by Powell v. County of St. Louis , 559 S.W.2d 189, 196 (Mo. banc 1977)). Indeed, such arguments have long properly been rejected on appeal in similar cases. See, e.g., State ex rel. Ward v. Linney , 90 S.W. 844, 844 (Mo. 1905). Ultimately, we echo our Supreme Court's conclusion in Costello : "In this case the Collector did not observe the statutes. And in such cases equity will afford relief." 262 S.W.2d at 596. Point denied. Conclusion We hold that the record contains substantial evidence supporting the trial court's ruling that the notice of sale of the real estate in question did not describe the lands which were to be sold with reasonable certainty as required by section 140.530. This ruling was not against the weight of the evidence, and the trial court did not erroneously declare or apply the law in making it. Therefore, the August 24, 1998, tax sale at which Johnson purchased his interest in the subject real estate was conducted illegally as to those parcels, and the collector's deed under which he claims title is void and of no legal effect. Defendant-appellant Johnson thus has no right, title, or interest in the disputed lands, and plaintiff-respondent Stadium West Properties, L.L.C. is the sole owner of the surface estates thereof. Accordingly, the trial court's judgment is affirmed. All concur. Footnotes: FN1. At trial, Stadium West's witness Elliott E. "Bud" Farmer, Jr. ("Farmer") testified that a third party holds the mineral rights to the subject real estate, which borders a quarry owned and operated by Stadium West. For this reason, Farmer explained, Stadium West (which owns several other pieces of Boone County real estate) purchased these properties not for their value as future quarry sites, but to serve as a "buffer zone" around its existing quarry operations to prevent future disputes with adjoining landowners over potential dust and noise issues. FN2. The tax bills were evidently mailed to Gibson, the last owner of record, who, for whatever reason, simply ignored them without notifying either county tax officials or Stadium West. FN3. The record shows that the property descriptions contained in the redemption notices mailed out by Johnson were not the highly abbreviated versions set forth in the collector's notice of sale, but fully detailed metes-and-bounds versions almost identical to those contained in the then-unrecorded general warranty deed from Gibson to Stadium West. FN4. Johnson lodges no complaint on appeal as to any of these equitable remedial orders, which were clearly designed to restore the status quo ante under Chapter 140 and section 527.150. FN5. The court did not further explain what those "particulars" were.
FN6. "The Jones-Munger Act (chapter 140, RSMo) provides for the annual sale of real property on which payments of property taxes have been delinquent." M & P Enters. , 944 S.W.2d at 156. This (literally) ground- breaking legislation, which "effected a radical change in the method of foreclosing the state's lien for delinquent taxes by suit in a court of competent jurisdiction," was enacted in 1933. Schlafly, 108 S.W.2d at 366; see also 1933 Mo. Laws 425-449. "Before the Jones-Munger Act, the lien for taxes was foreclosed by suit. If inferior lien holders were made parties to the suit, their liens were extinguished. Jones-Munger substituted an administrative proceeding for the judicial foreclosure and instead of being made parties to the suit, lienholders are notified by publication." McMullin v. Carter , 639 S.W.2d 815, 817-18 (Mo. banc 1982) (internal quotation marks and citations omitted). FN7. Art. 10, section 13 of the Missouri Constitution contains a nearly identical provision, which was adopted in 1945: "No real property shall be sold for state, county or city taxes without judicial proceedings, unless the notice of sale shall contain the names of all record owners thereof, or the names of all owners appearing on the land tax book, and all other information required by law." For jurisdictional purposes, we note that this case does not require the construction of a revenue law and does not present even a colorable constitutional issue, much less a real and substantial one requiring resolution by our Supreme Court. FN8. We note that several of the statutes we have quoted, including sections 140.150 and 140.170, were substantially modified in 2003. However, as those amendments occurred one or more years after the collector published the notice of sale and Stadium West filed its petition in the case sub judice , the amended statutes have no application here. FN9. We note that in Adams v. Gossom , 129 S.W. 16, 21 (Mo. 1910), the Court observed: "[I]t is settled doctrine that a purchaser at a tax sale, who has notice of an unrecorded deed, takes subject to the rights of the grantee in such deed since he stands charged with the knowledge that the apparent record owner was not the real owner." See also Ortmeyer v. Bruemmer , 680 S.W.2d 384, 394-95 (Mo. App. W.D. 1984) (one who purchases realty subject to a prior but unrecorded conveyance to another takes free of that interest only if he was a bona fide purchaser for value and did not have actual notice of the unrecorded conveyance). In his answer to Stadium West's petition, Johnson expressly invoked this principle as an affirmative defense, although he later abandoned it by failing to offer any evidence at trial on the matter. For its part, Stadium West does not claim Johnson had actual knowledge of the unrecorded conveyance from Gibson to Stadium West. FN10. Of course, this reasonable certainty requirement applies not only to notices of sale published by the collector before tax sales, but also to the terms of collector's deeds issued after such sales. See, e.g., Mason v. Whyte , 660 S.W.2d 383, 386 (Mo. App. E.D. 1983). This is because, by its express terms, the statute applies to both sales and conveyances of land for satisfaction of back taxes. As the adequacy of the property descriptions in the tax deed received by Johnson (which were the same as those contained in the notice of sale except for the addition of " Parcel # 27-600-24-00-002.00", the meaning or significance of which does not appear in the record) was neither raised by Stadium West in its pleadings nor tried by consent, we do not further consider that issue. FN11. Cases decided both before and after Childress also make it clear that this is the rule in Missouri. See, e.g., Lowe v. Ekey , 82 Mo. 286, 291 (1884) (internal quotation marks omitted) ("[I]f there was no sufficient description of the land in the anterior proceedings, assuredly a good description in the tax deed could not retroact upon a prior bad description of the land and validate it."); Acton Enters., Inc. v. Stottle , 646 S.W.2d 149, 151-52 (Mo. App. S.D. 1983) (affirming trial court's judgment setting aside a collector's deed issued to the successful bidder after a tax sale on the ground that that property description contained in the collector's notice of sale was too vague in that it "could have described any land within the S 1/2 of the S 1/2 of Section 30, Township 22, Range 20," even though the collector's deed itself contained a proper description of the subject real estate). Thus even if the tax deed issued to Johnson contained a valid description of the land conveyed (which, as noted above, we do not decide), it would not cure any deficiency in the notice of sale. FN12. An unrelated part of the Court's holding in Childress was subsequently overruled in Kuyper v. Stone County Comm'n , 838 S.W.2d 436, 437 (Mo. banc 1992). FN13. Although the plaintiff in Ijames also presented testimony to the effect that the description was too indefinite, we think the Eastern District's opinion makes it plain that the case did not turn on that testimony, but instead on the patent inadequacy of the property description in the notices of sale, the collector's deed and the trustee's deed.
Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.