FLYNN V. EDWARDS.
873
ment of the corporation, nor in the benefits and profits derived from the corporate business. As to such parties, the fundamental reason for liability to creditors fails. If it be sought to hold the defendant Larrabee liable because by a technical construction of the 'word "shareholder" he may be included within the saD;le, as found in section 5151, then he has the right to.insist that a simil!j.r1y technical construction be placed upon the word "trustee," as used in section 5152, in which case he would be exempt simply because he comes within the language of the section'. 'But, looking beyond the mere language used in these sections, or rather .construing the same according to the true meaning and purpose thereof, it 'must 1:>e tn;Je that Larrabee can not be held liable under the provisions of section 5151, unless it appears that he is a shareholder in the defunct bank, or has held himself out as such.' According to the averments of the answer he did not own the shares of stock assigned to him as trustee, and had no beneficial interest ofany kind therein, nor could he derive any benefinherefrorn.· He had assumed the duties of a trustee for the owner :or pledgor,Graves, and for the creditor or pledgee, the McGregor bank, but beyond the duties of such trusteeship he has no interest in the stock. He represents, on the one hand, the real owner of the stock, to whom crediturs may look for the payment of the assessmen.t8j and on the other} the pledgee and creditor, and, occupying this position, he cannot be fairly or properly said to be a shareholder in the bank within the meaning of .section 5151 of the Revised Statutes. Not being then a:shareholder withill 'the meaning of tnat section,or., if he be such ,then being a trustee withih ,the exception enacted in Sl1ct10n 5152, he cannot be held liablefor,the assessments upon the stock held by him as trustee. The demurrer, therefore, to the answer must in favor of both defEmdants be, and the same is . hereby, overruled.
FLYNN (Oif'e'Uit (Jourt, W. D.
v.
EDWARDS.
Mi88ouri. W. D. December 10,1888.)
Under Missouri practice of not expressing the amount of costs In.!l. judgment. and Rev. St. Mo 1019, requiring the clerk to make an itemized stl'tement of the debt and costs on the' back of the execution, a judgment for tain sum, and costs of the action. 'declaring a'lien on the land therefor, and directing that the land be sold in satisfaction thereof, is a sufficient judgment in fact awarding costs. . . , ': . 2. . , . In ejectment by the former owner of land sold for taxes, the fact that 'the transcript of the record of the tax suit shows only an alias writ of summons ,not SU!ficiyDt evidence. that no !?r!,ginal "Yrit to the for ISSUIng and serVIng the orlglDal Wrlt were Improperly charged·. '.
1.
JUDGME!<T-RENDITION AND ENTRY-AMOUNT-COSTS.
8,
8AME-:WATVER OF OBJECTION.
.
',.' ,
·'Plaintitf;' having made a payment on the judgment 'arid costs illsufficient;to cover such ,!ees, and having· been notified of the deficie.!1cyby the,
874
REPORTER.
'and neglected to exercise his right to move for a retax;ation of the costs, given by Rev St. Mo. § lOll, cannot be heard to say that the unpaid balance was inconsiderable, and that the land should not have been sold. 4" TAXATION,-;,COLLEOTION BY Surr-BALE-COLLATERAL ATTAOK.
Where land is sold'under a judgment for taxes, by virtue of Rev. St. Mo. § 6836, providing,for the enfONement of payment of taxes by suit, the neglect of the sheriff to sell only such subdiVIsIOn as might have been necessary to satisfy the judgment, is not available in a collateral action of ejectment by the former owner against the purchaser Plaintiff, having obtained satisfaction of the judgment by a sale of the land, and received and held the balance of the proceeds for 8 period of five years, cannot question the validity of the sale as against subsequent purchasers in good faith, who have made valuable improvements thereon, though he pays the sum so received into court: such payment being unavailing in a mere possessory action at law, and any equitable rights he might have had having been lost by his laches.
5.
SAME-EsTOPPEL-LN PAIS.
At Law. Ejectment by William Flynn againstJ. P. Edwards to recover possession of certain land formerly owned by plaintiff, which had been sold for taxes.· . George H.English, for plaintiff. A. for defendant. PHILIPS, J. This is an action ofejectment for the recovery ofthe possession of40acresof land situated in the county of Bates, ouster laid in 1883. "The plaintiff is recognized as a COlDmon source of title. The defendant claims title by mesne conveyances, under a tax deed. The evidence in the case shows that this land was returned as delinquent for taxes unpaid by !the plaintiff thereon. Pursuant to the statute (section 6836) suit was instituted in 1879 against the plaintiff in the circuit court of Bates county, Mo., in the name of the state, at the relation of the county collector, to enforce, by judgment, the collection of said tax against said land. There was a personal service upon the defendant, and a judgment was duly rendered against him therein on the 5th day of August, 1880, enforcing the lien of the state for the' taxes and costs, and directing a special ft. fa. for the enforcement thereof. Special execution issued thereon on the 11th day of September, 1880, under which the land, after due advertisement, was sold on the 11th day of November, 1880, and Benjamin B. Canterbury and W. A. Scott became the purchasers thereof at thE! sum of 876, which sum was then paid to the sheriffj and the sheriff, dutl time, lDade his report of sale thereof, and on .the day following executed, acknoWledged, and delivered a deed therefor to the said purchasers. Afterwards, on the 29th day of March, 1881, the said Canterbury and Scott, by deed of warranty, duly conv'eyed the said land to the defendant herein in consideration of the sum of $200. At the . time of the sale the land was unimproved and unoccupied, and was of very indifferent quality. The defendant took possession after his purchase, and ever since remained in possession. He has inclosed the same with <a fence, and put valuable improvements thereon, using the ground principally for feeding and herding cattle. The plaintiff assails
FLYNN
875
the validity of defendant's title on various grounds, which will be considered in their order. 1. It is claimed, first, that, after the rendition of said judgment, and before the sale under the execution, the plaintiff paid to the collect.or the whole amount of debt and costs then due. It may. for the purposes of this opinion, be conceded to plaintiff that if, as a matter of fact, he did so pay to the collector the amount of said judgment and costs, that any subsequent sale of the land under said judgment was unauthorized. and no title would pass thereunder. The principal and interest found due by the judgment on the 5th day of August, 1880, amounted to $34.70. This debt by provision of the statute, and the direction of the judgment,' bore 10 per cent. interest. On the day of the issuance of the execution the interest amounted to 34 Cents, making principal and interest then due $35.04. The judgment shows that, after the rendition of the judgment, the plaintiff did send to the collector the sum of $47.12. There is some controversy as to the date of the receipt ofthis money at the whole evidence, written and parol, the best conclusion at which I can arrive is that this money was received by the collector on or about. the 29th of September, 1880, which would make the. amount of principal and interest then due $35.20. On the date lashbove named the collector wrote a postal card to the plaintiff, in which he stated that the $47 and some cents had just been handed to him in a draft, llnd notifying him that itlacked $7.74 of paying thejudgment, and that ifhe would . send the money within five or six days, that would satisfy the claim; otherwise the land would be adyertised for sale, incurring additional costs. On the back of the execution the clerk indoreed an itemized statement of the debt and costs, as by statute in such case made and provided, (section 1019, Rev. St.) The aggregate amount of such costs were $18.49,. which, added to the debt, and interest, would make an aggregate of $55.53; so that, if the amount of costs were correct, the sum paid by plaintiff to the collector was short about $6.40. Plaintitl"s counsel first contends that there was no judgment in fact awarding (Josts. Without conceding that such award was essential to be expressly made in the judgment, it is sufficient to say that the judgment, in exthe press terms, after ascertaining the amount of the debt, and lien on the land, says: . "The court further adjUdges that the sum of thirty-four dollars and seventy cents, together with interest, fees, and commissions, and costs of this action. constitute and are a lien against said parcel of land." The judgment then further directs that the land be sold under special fi.fa., "in satisfaction of said sum of money, together with all costs, interest, fees, 'and commissions adjudged herein to be due thereon." As a matter of practice, under the Missouri statutes, the amount of the costs are never stated in the judgment. "The judgment is, for the debt so much, and daniages so much, and costs, without specifying what exact sum; and on the execution the costs are indorsed, and this has eVer been consitiered in this state sufficient authority to make the costs." McKnight v. Spain, 13 Mo. 538. The clerk, as a matter of fact and prac-·
87·6
FEDERAL REPORTER.
tice, taxes up the costs after judgment, and enters them in a fee· book kept therefor, and when he issues execution he simply enters an itemized amount of these fees upon the back thereof. "Such ajudgment for costs; being a final disposition of the case, is like any other final money judgment of the circuit court, and constitutes a lien for the yosts * * * in. favor of the party prevailing." Beedlev. Mead, 81 Mo. 304. The costs"are fixed by law, and the sum is a mere matter of calculation," to be made, of course, by the clerk. Bobb v. Graham, 15 Mo. App. 296. 'l'he next contention of plaintiff is that among the Items of costs so stated by the clerk are the following, which he claims are improperly c4arged, to-wit: "Alias writ & copy, $1.50; copy of petition, seal, &c., $1.25; fee-bill and 6;ltecution, $1.00; original writ, copy of petition, copy of writ, $2.00; also a return of the sheriff of Cass county, 50 cents,-aggregating $6.25.... Jt is by plaintiff's counsel there was never an original writ of summons, copy of petition, etc" and but one alias writ, so called, issued by the clerk, and that was the,one served on the plaintiff in Jackson county j Mo. For proof of this he relies upon a certified transcript of the record and proceedings had in the tax suit, from the circuit clerk's office of Bates county, which transcript only gives a copy of what purports to be an alias writ of summons sent toJackson county, on which service was hlld. It is not satisfactory to my mind that the general certificate, in the usual perfunctory style, attached by the clerk to the is suffiCIent evidence to justify the court, in this collateral proceeding, in holding that there was but one writ of summons. issued in the case. The transcript ofthe record shows that the petitiol1 in the tax siUitwa.sfiled on the 10th day of September, 1879, and it would be fair to presume that the writ of summons went instantly, and this presumptiop:is confirmed by the subsequent entry of record made by the court at tbeMarch term, 1880, to which term an original writ of summons would bl\ve been returnable. This record recites: "Now, at this day, it is orderedthat an alias writ issue to Jackson county, Mo." The tion, therefore, must be indulged, in favor of this aytion of the court, that ;an original writ had been issued and returned non est; and, ifso, tbe (lharge of $2.00 was properly made by the clerk; and this would most probably account for the item of 50 cents charged in favor of the sheritfof Cass county, which would be the sheriff's fee for a return of est· .. This would leave only to be accounted for the two items of $1.50 and $1.25 for one alias writ,'copy of petition, etc., amounting to $2.75, and ·the item of $1.00: for fee-bill' and execution. I am unable to account for sa,id seooud alias writ; hut the item of fee-bill is nothing. more than the specialfi. fa. issued by the clerk, as. that else charged for,and the prefix of the "fee,bill" to the ,word would not, I presume, be seriously claimed to invalidatp. tPl:!-t so that, giving the plaintiff. every real'lOnable advantage of his .criticismontbis biHof costs, there is a charge of only $2.75 not accoll.nted .for; from all. of which the tact remains that the sum ·sent by the the,collectol' fellshQrt $3.65 of satisfying the judgment and
FLYNN V.EDWARDS.
877
costs. And, after having been expressly notified by the collector that the sum sent by him was insufficient, his failure to give further attention to the matter was at his own peril; and the collector, actmg in his official capacity aR the representative of the state and the instrument of the law for the collection of the debt and costs; not only had the right, but it was his duty, in obedience to the command of the writ, to proceed to advertise and spll to make the residue thereof. The plaintiff cannot now be heard to sny, in justification of his own negligence and dereliction, that the money he sent to the collector was sufficient to satisfy the judgment for the prillcipal debt, and that thp officer was not justified in proceeding further to collect so inconsideraLle a balance for costs. As a' matter of practice the costs are first to be paid out of any sums collected by the officer. Ror. Jud. Sales. § 1448; SheUy'sAppeal,38 Pa, St.21C McNeil V. Bean, 32 Vt. 429; Fry's Appeal, 76 Pa;St. 82; Herm. Ex'm,: §278. Under this view the sum so paid by plaintiff to the collectorleif the principal debt unsatisfied, after, deducting the $15.74 of costs here inbefore demonstrated to have been properly charged. Under such Ie state of facts, as. disclosed by this record, after the plaintiff was notified: that the sum sent by him did not satisfy the jUdgment, and that the land would be ad vertised and sold for ilie residue, it was plainly his dlity to look after the matter of costs, and if there were any errors clairried by' him to have been committed· by the clerk in his auditing oUhe fees .he· should have availed himself of the provision of 'section 1011,· Rev. St. Mo., which authorizes any person aggrieved by the taxation of a' bill or costs to make application to the court from which the execution issued to retax the costs. "In such retaxation all errors shall be corrected 'by the court." See Freem. Ex'ns, § 381. ' 2. It is next insisted by plaintiff's counsel that it was thedutyofthe sheriff, in conducting the sale under the execution, to have sold the land in the least possible quantity that would have satisfied the' judgment; and not to sell the whole 40-acre tract without .first having offered a less 8ubdivision, anJ that his'report of the sale should show this fact:to ,justify his action in selling the whole. It is unnecessary to discuss the visions of the statute in this respect, or to review the authorities cited by counsel from other jurisdictions touching this question, as it has been expressly held by the supreme court of this state,in Wellshear V. Kelley; , 69 Mo. 344, that" the neglect of tbe sheriff to sell the land by its small;. est legal subdivision did not invalidate tbe sale in a collateral protJeed;' ing." This decision was predicated of a tax sale under the very statute in controversy. This, being the construction placed on this statute by the highest judicial authority of the state, should be followed in risdiction. 'Ehis rule applies peculiarly as to third purchasers under the vendee at the execution sale. Freem. 296; Mixer v. Sibley; 53 Ill. 61. 3. There is still another objection ta plaintifi"s right to maintain this action. The evidence shows tbat within the year after the sheriff's sale the plaintiff engaged the, services of W. T. Johnson, Esq., a competent attorney at law of Kansas City, to proceed to Bates county and
878
vestigation of the regularity of the judicial proceedings leading to the judgment and sale thereunder of the land in question; and, if satisfied of the validityof the sale, to draw the balance of the money in the hands of the sheriff arising from the sale, after satisfaction of the judgment and costs. Johnson accordingly went to the county seat of Bates county. made the examination, and, being satisfied thereby that plaintiff had lost his land, drew from the sheriff the said balance in his hands, amounting to $41.10, and, after returning to Kansas CIty, explained to plaintiff the situation, and gave him his opinion, informing him after the satisfaction of the judgment and costs in the tax suit there remained in the hands of the sheriff the sum of $51.90; that the sheriff held in his hands another execution against the plaintiff in favor of one George Hale for the sum of $10.80, to which he had applied that sum m satisfaction; an( that he had drawn from ,the sheriff the remaining sum of $4! .10. This sum Johnson, on the 28th day of September, 1881, paid over to plaintiff, taking his receipt therefor, which is here in evidence. This sum the plaintiff retained in his possession, as his money, at the time of the institution of this suit, 011 the 5th iay of November, 1885, and until the 17th day 0: October. 1887, when,·at the instance of Judge Krekel, before whom the cause was then on trial, he paid it into court as the condition of any judgment herein in his favor. 1 am unable to perceive how such act of paying this money into court can avail the plaintiff in the action of ejectment. It is a naked possessory action at law, and as such the right of the plaintiff to maintain his action must be determined by the {auts and the law as they stood at the time of the institution of suit. No equitable principle is involved. The plaintiff could not strengthen his cause by any subsequent act. If he was estopped or barred of his right of action at the time of the institution of suit at law, it so remains to the end of the litigation. And even if the character of the action were such as to permit of such after restitution, the plaintiff has not done complete equity. He has reaped the benefit of the sale in having a judgment and execution against him satisfied out of the proceeds in favor of said Hale. HEi yet enjoys the fruit thereof, and has offered no restitution. He also held and enjoyed the residue, $41.10, for over six years, and then paid into court the principal sum, without interest.Thisis not equity. if the case is to be decided on equitable principles. It may, not be technicaliy correct to call it an estoppel, but, be itel:ltoppel, election, orratificatioll, I undertake to say. both on reason and authority. that where a party, with full knowledge. such as the plaintiff unquestionably had, of the fact that his land had been taken under execution in a judicial proceeding, and, sold by the sherif!', and aft{'r he has made examination into the facts and particulars thereof, with all the facts open and accessible to him then as now, takes from the sheriff the balance of the proceeds of sale, appropriates and enjoys it, as did the plaintiff in this ease, he has made his election to abide by the result. He has completely ratified the proceeding, and it does not,after the lapse of fiye :years. lie in his mouth to question its validity. especiallyas against a third party · who has since, in good 1irith,made last-