Adams v. Gossom

• Decision Date: 31 May 1910
• Citation: 228 Mo. 566,129 S.W. 16
• Parties: ADAMS et al. v. GOSSOM et al.
• Court: Missouri Supreme Court

129 S.W. 16

228 Mo. 566

ADAMS et al. v. GOSSOM et al.

Supreme Court of Missouri. Division No. 1.

May 31, 1910.

1. APPEAL AND ERROR (§ 649)—RECORD— AMENDMENTS.

Where the original abstract did not show a record entry of the filing of the bill of exceptions, and the Supreme Court granted leave to appellant to apply to the trial court for a nunc pro tunc order, if warranted by the facts, and the trial court made a nunc pro tunc order as shown by an additional abstract showing a record entry of the filing of the bill of exceptions, the exceptions are reviewable.

2. JUDGMENT (§ 12)—DEATH OF PARTY BEFORE SUIT.

A judgment in a tax suit rendered in an action against the deceased owner is a nullity as against his heirs and widow.

3. TRUSTS (§ 72)—RESULTING TRUSTS.

Where one paid the consideration for land, title to which was taken in the name of another, a resulting trust arose in favor of the former.

4. ADVERSE POSSESSION (§ 70)—CLAIM OF TITLE—NATURE AND SUFFICIENCY.

Where one who furnished the consideration for land, title to which was taken in the name of another, took and held possession under a claim of right adversely and continuously for more than 10 years by unequivocal acts of ownership, so that he was recognized by the taxing officers as the owner, he acquired a legal title good as against the whole world, in the absence of peculiar features suspending the running of limitations on behalf of a particular claimant.

5. TAXATION (§ 734)—BONA FIDE PURCHASER —NOTICE—POSSESSION.

Where one is in open, notorious, and adverse possession of land, record title to which is in another, a purchaser at a tax sale in a suit against the record owner is not a bona fide purchaser, but he takes subject to the title and equities of the one in possession claiming ownership.

6. VENDOR AND PURCHASER (§ 230)—BONA FIDE PURCHASER—"NOTICE."

A purchaser of real estate is chargeable with notice derived from the recitals of his deed, for anything which will put a prudent man on inquiry is notice.

7. TAXATION (§ 734)—BONA FIDE PURCHASER —NOTICE.

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 is charged with the knowledge that the apparent record owner is not the real owner.

8. JUDGMENT (§ 691)—PERSONS BOUND— HEIRS OF CESTUI QUE TRUST.

Where a purchaser at a tax sale had notice of the title of a third person, including an unrecorded deed from the record owner to a grantee with a resulting trust in favor of the third person, and then brought suit against the record owner to quiet title, the judgment obtained by him did not affect the rights of the heirs of the third person not made parties.

9. EQUITY (§ 67)—"LACHES."

Laches is an equitable doctrine, proceeding, regardless of the statute of limitations, to do equity, and is only applied to work out equitable results.

10. TAXATION (§ 791)—SUIT TO SET ASIDE TAX SALES—STATUTES—APPLICABILITY.

Laws 1903, p. 254 (Ann. St. 1906, § 9319-1) requiring plaintiff in a suit to set aside a tax deed to offer to refund taxes paid by the purchaser, does not apply to tax sales made prior to its passage.

Appeal from Circuit Court, St. Francois County; Charles A. Killian, Judge.

Action by Olinda V. Adams and others against James H. Gossom and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Thos. L. Anderson and Hy. H. Oberschelp, for appellants. Jere S. Gossom, for respondents.

LAMM, P. J.

James F. Adams died in 1878 leaving a widow, Genevieve (intermarried with Lester) and three children, Mary (intermarried with Swain), Rosalind, and Olinda. These children and their mother on August 31, 1905, sued Gossom, his wife, and the Doe Run Lead Company to quiet title under section 650, Rev. St. 1899, in the St. Francois circuit court claiming to own the real estate described in their petition situate in St. Francois county, Mo., viz., the N. ½ of the S. W. ¼ and the S. W. ¼ of the S. W. ¼ of section 13, township 38, range 5. There was a second count in ejectment, alleging that defendants were in possession. Judgment going for defendants, plaintiffs appeal. Plaintiffs claim title as widow and heirs of James F. Adams and by quitclaim from the heirs of John B. Adams, and by adverse possession, which, they say, ripened into title as against the whole world. On the other hand, the defendant James H. Gossom admits possession in himself and claims title through certain tax proceedings reinforced by a subsequent decree in a suit brought to clear up and perfect the title acquired at the tax sale. The defendant the Doe Run Lead Company claims a two-year option to buy Gossom's title on condition that it prove perfect. It alleges by its answer that it was not a proper party to the suit, "has no interest in the title," and asks to be discharged from "further litigation." In the answer of Gossom and wife it is alleged, inter alia, that plaintiffs by long-continued silence and failure to assert their claims and give the defendants any notice of it, either actual or constructive, have been guilty of gross negligence and laches and have estopped themselves. Any other facts necessary to the determination of the case will appear in the body of the opinion.

1. The original abstract made no showing of a record entry of the filing of the bill of exceptions. Respondents filed a counter abstract, showing no entry was made. At a former term we granted leave to appellants to apply nisi for such nunc pro tunc order, if the data existed warranting it. Acting on the leave, a successful application on that score was made below, and the supplied entry was brought here by an additional abstract by appellants. Respondents make the point that, absent a record entry showing the filing of a bill of exceptions, there are no exceptions to review. But whatever merit at one time in that view is now gone. Sufficient record has been supplied in a way according with the practice of the courts. Ross v. R. R., 141 Mo. 390, 38 S. W. 926, 42 S. W. 957; Reed v. Colp, 213 Mo., loc. cit. 586 et seq., 112 S. W. 255. We rule, therefore that the case is here on its merits.

2. Plaintiff's title runs as follows:

(a) A warranty deed from Joseph Stay and wife of date October 5, 1864, to John B. Adams conveying the land in dispute, consideration $250, duly acknowledged. This deed was not recorded until July 3, 1905, in St. Francois county.

(b) A quitclaim deed of date April 21, 1905, from the heirs of John B. Adams to appellants conveying the premises in consideration of $1. This deed was recorded in St. Francois county on the same date as (a), and was acknowledged in Massachusetts where grantors resided.

(c) A warranty deed from William Lambourne and wife to Joseph Stay, recorded on April 30, 1864, acknowledged on May 20, 1862, conveying the premises. Consideration $190.

(d) The record of a patent from the United States government conveying the land to John Nash, dated in 1859, and recorded in 1864.

Oral testimony, practically undisputed, tended to show that John B. Adams resided at Springfield, Mass., and died in 1894, intestate; that his widow is dead; that John B. was a brother of James F. Adams, who formerly lived in St. Francois county, Mo., at Valley Mines; that the grantors in (b) were the only heirs of John B.; that James F. Adams in 1864 lived in North St. Louis; that in that year he bought with his own money the land in dispute from Joseph Stay, and took warranty deed (a) in the name of his brother John B.; that James had the money by him in his house at the time, and it was there paid over to Stay in the presence of witnesses; that from that day to this the deed has been in the possession, first, of James, and, on his death, of his family; that at that time Stay was a gray-headed man (over 60 years of age); that James F. Adams moved on the land (then naked and wild, we infer) in the 60's with his family, put up buildings, did fencing, planted an orchard, cultivated fields, and, having lived there for over 10 years claiming to own it, died on the place, and was buried in a private neighborhood graveyard; that his widow continued to live there with her three little girls for two years after her husband died, then moved to St. Louis in October, 1880, and thereafter for 10 years paid all the taxes. When she moved away she left a tenant in possession. She was unable to make a living on the farm with only her little girls to manage it and moved back to St. Louis on that account. She collected no rent, and was unable to send any one back to look after it. There was also testimony tending to show that John B. Adams never knew the title was taken in his name or knew of the deed. The children of James F. Adams, suing here, were born on the farm. There was some evidence that the widow, in her perplexity, quit paying taxes, planning thereby to eventually get a record title in her own name through tax proceedings. Supposing she would be notified of the tax sale, and hearing nothing, she eventually ascertained by letter that the land had been sold. On that information, in 1903 appellants employed an attorney in St. Louis, Mr. Pitzer, to recover the land. Mr. Pitzer sought out the defendant James H. Gossom who seems also to reside in St. Louis. Gossom claimed the land under a tax sale, and, on behalf of appellants, Pitzer tended him taxes paid and his bid, gave him notice of plaintiffs' claim, and that, unless the proposition was accepted and a quitclaim made, they would sue. Mr. Gossom said he would consult his attorney and do as he advised, telling Mr. Pitzer that he (Pitzer) would hear from him as soon as he heard from his attorney. Not hearing from Gossom Mr. Pitzer presently discovered that he had instituted a suit to quiet title. To this suit appellants were not parties. Afterwards appellants filed a bill in equity to set aside the tax sale, but dismissed that and instituted the present proceeding. It appears also that...