Bartlett v. Kauder

• Decision Date: 04 March 1889
• Citation: 11 S.W. 67,97 Mo. 356
• Parties: BARTLETT et al. v. KAUDER.
• Court: Missouri Supreme Court

11 S.W. 67

97 Mo. 356

BARTLETT et al. v. KAUDER.

Supreme Court of Missouri.

March 4, 1889.

ADVERSE POSSESSION — TAX DEED — JUDGMENT — LACHES.

1. A void tax deed may constitute color of title, under the general statute of limitations.

2. A judgment in a back-tax suit against one whom the record shows to be the owner is effective only against such owner and those claiming under him. It is of no force as to one not a party to the suit, who has prior thereto acquired a title by adverse possession.

3. Where plaintiff in ejectment sues within the time allowed by statute, the mere fact that she "lived in the neighborhood" at the time defendant purchased and made some slight improvements, such purchase and improvements being in reliance upon a tax title, and not upon anything said or done by plaintiff in regard to the title, does not support a plea of laches and equitable estoppel.

Appeal from circuit court, Clark county; BEN E. TURNER, Judge.

Ejectment by Mary J. Bartlett and husband against Daniel Kauder. Judgment for plaintiffs, and defendant appeals.

Mattock, Hiller & Howard and W. H. Robinson, for appellant. Whiteside & Berkheimer, for respondents.

BRACE, J.

This is an action of ejectment to recover the possession of the N. W. ¼ of the S. E. ¼ section 1, in Clark county. The case was tried by the court without a jury. The court found for the plaintiff, and from its judgment in her favor the defendant appeals. Both parties claimed through Margaret Gorman as a common source of title. The plaintiff offered in evidence a deed from the register of lands dated November 18, 1859, to John Langford, for the S. E. ¼ of section 1, aforesaid, sold for delinquent taxes of 1856, assessed to Margaret Gorman. The defendant objected to the introduction of the deed as evidence of legal title. The court sustained the objection, but permitted the deed to be read as evidence of color of title. The defendant excepted, and in support of his exception cites Mason v. Crowder, 85 Mo. 526, from which, however, the position of counsel derives no support. On the contrary, the decision in that case expressly recognizes the doctrine that a void tax deed may constitute color of title under the general statute of limitations. The extent to which that case goes in this respect is that a tax deed void on its face will not set the three-years special statute of limitations (Rev. St. § 221, p. 1207) in operation.

2. The plaintiff then introduced in evidence a deed from John Langford to John A. Hubert for W. ½ of said S. E. ¼ of section 1, dated December 8, 1863, and a deed from Hubert to Martin L. Cheek for said W. ½. The plaintiff is the sister of Cheek, who died in 1880, and his only heir at law, and has acquired the dower interest of her brother's widow by deed. The plaintiff then introduced evidence tending to prove that Hubert went into possession of the land in controversy in 1863 or 1864, and that he and his grantee, Cheek, were in the actual, open, exclusive, continuous, and adverse possession of said W. ½, including the land in controversy, claiming title thereto under said deeds from that time until the death of Cheek, in 1880, and the court found the fact so to be. The sufficiency of the evidence to support this finding cannot be questioned on appeal. Hamilton v. Boggess, 63 Mo. 233; Schad v. Sharp, 95 Mo. 574, 8 S. W. Rep. 549. The deeds from the register to Langford, and from Langford to Hubert, affording color for such claim of title, there was no error in the instruction given by the court for the plaintiff on the question of title by limitation. Hamilton v. Boggess, supra; Railroad Co. v. Clark, 68 Mo. 371; Jackson v. Magruder, 51 Mo. 55; Sutton v. Casseleggi, 77 Mo. 397; Rannels v. Rannels, 52 Mo. 108; Cooper v. Ord, 60 Mo. 420; Nelson v. Brodhack, 44 Mo. 596.

3. The defendant introduced in evidence a deed from Margaret Gorman to George Welden, and mesne conveyances from Welden to Mary E. Camplin, whose deed was recorded November 28, 1877, and a deed from the collector of Clark county to H. M. Miller for the land in controversy, made in pursuance of a sale thereof on the 10th of October, 1878, under a judgment of the circuit court in a back-tax suit instituted March 29, 1878, against the said Mary E. Camplin for delinquent taxes, and mesne conveyances from Miller to one Houren, whose deed therefor was dated August 18, 1881, and who by his...