Alexander v. Haffner

• Decision Date: 14 October 1929
• Docket Number: No. 27579.,27579.
• Citation: 20 S.W.2d 896
• Parties: WILLIAM T. ALEXANDER v. WILLIAM HAFFNER, Appellant.
• Court: Missouri Supreme Court

20 S.W.2d 896

WILLIAM T. ALEXANDER v. WILLIAM HAFFNER, Appellant.

No. 27579.

Supreme Court of Missouri. Division One.

October 14, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. Franklin Miller, Judge.

REVERSED AND REMANDED (with directions).

Bates & Baron for appellant.

(1) The proceedings to enforce the lien of special and general taxes are in the nature of proceedings in rem against the property and result in judgments in rem. Morey Engineering & Construction Co. v. Ice Cream Co., 242 Mo. 241; Vance v. Corrigan, 78 Mo. 98; Barber Asphalt Paving Co. v. St. Joseph, 183 Mo. 451; Allen v. McCabe, 93 Mo. 144. (2) Suit having been instituted against the one who is the record owner at the time of the institution of the suit, the judgment is binding upon a grantee in a deed executed prior to the institution of the suit but not recorded at the time of the institution of the suit, though such deed be put on record subsequently and prior to the time of the judgment, and the title to the fee passes by sale under the execution to the purchaser. Hilton v. Smith, 134 Mo. 508; Millerson v. Land & Cattle Co., 241 S.W. 908; Schnitger v. Rankin, 192 Mo. 35; Charter Oak Land & Lumber Co. v. Bippus, 200 Mo. 688. (3) The filing of notice of a suit brought on special tax bills with the Comptroller as required by Sec. 8997, R.S. 1919, and 1914 Charter of St. Louis, Art. XXIII, Sec. 8, is in the nature of a lis pendens, and is intended to impart notice of the pendency of the suit, not to the defendants in the suit, but to third persons and title examiners. Haag v. Ward, 186 Mo. 325. (4) Plaintiff's failure to record his deed until December 31, 1920, estops him from claiming any right, title or interest as to the property as against defendant, who purchased said property at the sheriff's sale under special execution pursuant to the judgment obtained in the suit of Bates v. Benson, which suit was instituted prior to the recording of plaintiff's deed against Emma Benson, who, according to the records of the Recorder of Deeds' office, was the apparent owner of the property, since neither plaintiff in the suit of Bates v. Benson nor the defendant, the purchaser at the execution sale, had actual notice that plaintiff had any interest in the property at the time of the institution of the suit of Bates v. Benson. Barron v. Store Co., 292 Mo. 195. (5) The uncontradicted evidence showed that the deed was not delivered to plaintiff until after the suit of Bates v. Benson was instituted; consequently plaintiff acquired no interest in the property until the time of the delivery of the deed. The uncontradicted evidence also showed that the defendant, William Haffner, had no actual notice of any claim or title to said property by the plaintiff Alexander. It ought to make no difference whether the purchaser at the execution sale had notice or not, because the plaintiff in the suit of Bates v. Benson ought not to be prejudiced in enjoying the fruits of his judgment at the execution sale by limiting the purchasers to those who had no actual notice, since under the decisions he is under no obligation to make those parties who revealed their interest subsequent to the institution of his suit.

Frank X Hiemenz for respondent.

(1) A deed from the record owner of land put of record after a judgment against the record owner, but before a sale under execution issued on said judgment, will prevail and convey good title to the grantee named in such deed as against a purchaser at said sale. Sugg v. Duncan, 238 Mo. 422; Hannah v. Davis, 112 Mo. 607; Davis v. Owenby, 14 Mo. 170; Harrison Machine Works v. Bowers, 200 Mo. 219; Vance v. Corrigan, 78 Mo. 94; Stuart v. Ramsey, 196 Mo. 404; Wilcox v. Phillips, 260 Mo. 664; Boland v. Trust Co., 298 S.W. 1052. (2) Respondent's deed was placed of record in the office of the Recorder of Deeds not only prior to the execution sale, but prior to the time that the defendant in the suit on the special tax bills was summoned, long prior to the judgment and issuance of the execution, and imported constructive notice to all purchasers at the execution sale. Authorities supra; Sec. 2199, R.S. 1919.

RAGLAND, J.

This case comes to the writer for opinion on reassignment. It is a statutory action at law to ascertain, determine and quiet title to "Lots 20 and 21 of block 3 of the subdivision of the Robert Walsh estate in block 3679 of the city of St. Louis, Missouri, fronting fifty feet on the south line of Garfield Avenue by a depth southwardly of one hundred and thiry-two feet to an alley." Emma Benson (formerly Emma Smith) is the agreed common source of title. On the 18th day of June, 1920, Mrs. Benson, then a widow, signed and acknowledged a warranty deed in due form, purporting to convey the said real estate to plaintiff. This deed she placed in the hands of her agent, one Abernathy, with instructions to deliver the same to the grantee when the latter paid to Abernathy for her $100, presumably the purchase price, or a part of it. Abernathy held the deed until December 31, 1920, when he filed it for record. He filed it just as soon as the $100 was paid him. After it was recorded it was delivered to plaintiff, the grantee. Immediately following the granting clause in the deed there was this recital:

"Subject, however, to the Mill Creek Sewer Tax which the purchaser agrees to assume and pay." At all the times hereinafter mentioned, prior to the delivery of the deed, on December 31, 1920, Mrs. Benson not only appeared from the deed records of the city of St. Louis to be the owner of the real estate in question, but she was in fact the owner.

On August 2, 1920, a suit was commenced in the Circuit Court of the City of St. Louis for the purpose of enforcing against the said lots the liens of two special tax bills, being two of a series theretofore issued by the city of St. Louis in payment of the cost of constructing "Mill Creek Joint Sewer District." The suit was brought by Charles W. Bates, assignee of the Carter Construction Company to whom the special tax bills had been issued, and Emma Benson, as the owner of the property, was made defendant. Thereafter, but on the same day, August 2, 1920, Bates filed with the Comptroller of the City of St. Louis a written notice, with respect to each of said tax bills, that he had commenced suit to enforce the payment or the lien thereof, as required by Section 8997, Revised Statutes 1919.

A history of the proceedings in the suit just mentioned, as narrated by the trial judge in the instant case during the hearing, from an inspection of the files in that case, is as follows:

"According to these files, the suit appears to have been filed August 2, 1920, evidenced by the filing stamp of the clerk on the back of the petition, and on that, original summons was issued for the defendant on August 4, 1920, and bears the return of the sheriff, `Not found.' That was to the October term, 1920. Now, there appears to have been no action taken during the October term, 1920, on the case.

"That term passed and there appears to have been no action taken at the December term, 1920. That term passed and, during the next term, the February term, 1921, it appears that an alias summons was issued for the defendant, March 9, 1921. That was to the April term, 1921, at which time a `not-found' return was made by the sheriff. It then appears that there was no summons of any kind issued, but the matter laid without summons whatever until the year 1925, and on May 13, 1925, at the April term of that year, a pleuries summons was issued in the same cause on the same petition and that was duly served by the sheriff on May 15, 1925, as evidenced by his return of service. Thereafter, June 8, 1925, default and inquiry was granted at the June term, 1925, followed by trial by default, June 22, 1925, and judgment for the plaintiff on the first count of the petition for $25.35 special tax bill and on the second count of the petition, $24.50 special tax bill. Those being special judgments and a lien against this specific property, which is the same property described in the petition in this suit."

Pursuant to the judgment just referred to special execution issued on the 21st day of July, 1925; a sale of the property was had thereunder on September 12, 1925; at such sale the property was sold to defendant for $200; a sheriff's deed, executed in conformity with statutory requirements and purporting to convey the lots to defendant, was delivered to him on September 22, 1925; the deed was recorded by defendant on September 23, 1925.

Neither Bates, the plaintiff in the suit on the special tax bills, nor the defendant, the purchaser at the execution sale, had any actual notice of the conveyance of the lots by Mrs. Benson pending the suit, until long after the execution and delivery of the sheriff's deed just referred...