Atkison v. Dixon

• Decision Date: 07 June 1886
• Parties: ATKISON v. DIXON and Wife, and another, Interpleader.
• Court: Missouri Supreme Court

1 S.W. 13

89 Mo. 464

ATKISON v. DIXON and Wife, and another, Interpleader.

Supreme Court of Missouri.

June 7, 1886.

1. EJECTMENT — WRIT OF POSSESSION — PARAMOUNT TITLE.

A writ of possession cannot be executed against one claiming under a paramount title.

2. TAXATION — TAX SALE — WHO CAN PURCHASE AT SALE.

To preclude any person from making and relying upon a purchase of lands at a tax sale, there must be something in the circumstances of the case which imposes upon him a duty to the state to pay the tax, or something which renders it inequitable, as between himself and the holder of the existing title, that he should make the purchase.

3. EJECTMENT — WHEN IT CAN BE BROUGHT.

One ejectment suit cannot be injected into another suit.

Appeal from Cass county.

E. J. Smith, for respondent and plaintiff in error. J. D. Parkinson, for appellant and defendant in error.

HENRY, J.

This was originally a suit in ejectment, in which John Atkison sued Lewis and Elizabeth Dixon for possession of the lot of ground in controversy. On a trial plaintiff had judgment, which, on appeal to this court, was reversed, and a judgment entered here in vesting the title in Mrs. Elizabeth Dixon. Pending the appeal plaintiff had obtained possession of the premises, and, after the mandate from this court to the circuit court, an execution was issued directing the sheriff to reinstate the defendants in the possession. This was executed on the fourteenth August, 1882, and on the same day John Atkison filed a motion to quash the writ, and Robert A. Atkison, his son, filed in said court a petition for restoration to the possession of said lot; alleging that at the date of the judgment he was, and for a long time previous had been, in possession by himself and tenants, claiming the real estate by a paramount title to that of either John Atkison or defendants, by purchase at a sale of said lot for taxes. He had previously, however, during the pendency of the ejectment suit, procured from his father a quitclaim deed for the lot.

It seems that there was evidence conducing to prove that the houses were erected on the lots under an agreement between Dixon and the tenants that they might be removed at the expiration of the tenancy, and that R. A. Atkison had purchased of the tenants their interest therein. On his petition the court found that the houses were personal property, and belonged to R. A. Atkison, and that, within a reasonable time, he might remove them, but that he was not entitled to the possession of the lot. The court also heard evidence as to the nature of the ground rent during the time R. A. Atkison occupied the lot, and found that it amounted to $1,408, for which it rendered a judgment against him, and $30 per month until he moved his houses, giving him until the first of March, 1883, to remove them. From this judgment he has appealed.

With regard to his alleged paramount title, if he had one, that was not affected by the judgment in the ejectment suit, to which he was no party. He was, however, bound by that judgment, so far as the title he derived from John Atkison pendente lite is concerned. But was it competent for the court to try the question of title between R. A. Atkison and the Dixons on plaintiff's petition as an intervenor, after judgment in the original suit? We think not. The only matter for determination on that petition was whether the petitioner was in possession under the parties to the action. The judgment is binding upon no one but "the defendant, and those claiming under him, or in privity with him." Smith v. Pretty, 22 Wis. 656...