Black v. Banks

• Citation: 37 S.W.2d 594,327 Mo. 341
• Decision Date: 31 March 1931
• Docket Number: 29382
• Parties: Thomas M. Black and Virginia I. Black v. John Banks, J. S. Armstrong and J. C. Day, Appellants
• Court: Missouri Supreme Court

37 S.W.2d 594

327 Mo. 341

Thomas M. Black and Virginia I. Black v. John Banks, J. S. Armstrong and J. C. Day, Appellants

No. 29382

Supreme Court of Missouri

March 31, 1931

Appeal from McDonald Circuit Court; Hon. Charles L. Henson Judge.

Affirmed.

J. A Sturges, for appellant.

(1) The first count in the petition is a collateral attack on judgment for taxes rendered at the August term, 1926. It was error to admit evidence de hors the records to impeach that judgment. Hines v. Felkins, 288 Mo 231; Davidson v. Real Estate Co., 226 Mo. 29. (2) The second count does not state facts sufficient to show grounds for equitable relief. There is no allegation of either fraud in procuring the judgment, collusion or mistake. Rogers v. Dent, 292 Mo. 576; Shemwell v. Betts, 264 Mo. 268; Lumber Co. v. Carroll, 255 Mo. 357; McDonald v. McDaniel, 242 Mo. 172. (3) Where the proceedings are regular, and the petition contains the proper allegations, judgment on service by publication is valid. Hines v. Felkins, 288 Mo. 231; Payne v. Lott, 90 Mo. 676; State ex rel. v. Wessel, 237 Mo. 593; Tooker v. Leake, 146 Mo. 419; State ex rel. v. Clarkson, 88 Mo.App. 553. (4) Equity will not intervene on any ground that might have been interposed as a defense to the former action. Even if there is fraud it must be free from negligence of the party complaining. Shemwell v. Betts, 264 Mo. 268; McDonald v. McDaniel, 242 Mo. 172. (5) Courts of equity do not grant the defeated party a second opportunity to be heard on the merits of the case. Rogers v. Dent, 292 Mo. 576; Shemwell v. Betts, and McDonald v. McDaniel, last above cited. (6) To vitiate the judgment on the ground of fraud, the fraud must have been in the very procurement of the judgment, and the defendants Armstrong, Banks and Day must have been privies to or parties in the fraud. Rogers v. Dent, 292 Mo. 576; Shemwell v. Betts, 264 Mo. 268; McDonald v. McDaniel, 242 Mo. 172; Ellis v. Knuckols, 237 Mo. 296. (7) It was error to admit parole evidence to contradict the records and files in the tax suit against Black and wife. Hines v. Felkins, 288 Mo. 223; Davidson v. Real Estate & Investment Co., 226 Mo. 1. (8) The rights of innocent purchasers for value are not affected by subsequent setting aside of judgment, or reversal of case. Schmidt v. Neiemeyer, 100 Mo. 207; Macklin v. Allenberg, 100 Mo. 337; Heffernan v. Ragsdale, 199 Mo. 375; Mangold v. Bacon, 237 Mo. 496.

D. H. Kemp for respondents.

(1) Equitable principles are to be applied to the facts to ascertain whether the sale should stand or be vacated. State ex rel. v. Innes, 137 Mo.App. 420; Hardware Co. v. Building Co., 132 Mo. 442; McKee v. Logan, 82 Mo. 524; Sheldon v. Franklin, 224 Mo. 342; Nelson v. Brown, 23 Mo. 13. (2) A purchaser of land is charged with notice of everything contained or recited in the record deeds constituting the chain of title under which he holds. Freeman v. Moffit, 119 Mo. 302; Wolf v. Dyer, 95 Mo. 545; Jacobsmyer v. Jacobsmyer, 88 Mo.App. 102; McDonald v. Quick, 139 Mo. 484; Loving v. Groomer, 110 Mo. 632; Wade on Notice (2 Ed.) secs. 308, 309; Adams v. Gossom, 228 Mo. 566; Gilkinson v. Miller, 74 F. 131. (a) Knowledge of the possession of land by a third person is sufficient to put a purchaser on inquiry. Schaffer v. Detie, 197 Mo. 393; Freeman v. Moffitt, 119 Mo. 280; Martin v. Jones, 72 Mo. 23; Davis v. Davis, 81 Mo. 27. Here the "next door neighbor" (John Banks) knew Thomas Black owned this land, and J. C. Day, in possession under Black, farming the land, remain ignorant and cry "innocent purchasers for value?" State ex rel. v. Wessell, 237 Mo. 610. (b) An inadequate price is sufficient to raise an inquiry as to the title of vendor. Insurance Co. v. Smith, 117 Mo. 293; Mangold v. Bacon, 229 Mo. 494. (c) And an evident purpose to remain ignorant of facts and failure to follow up an inquiry, where the facts would put an ordinarily prudent man on inquiry, is equivalent to notice. Adams v. Gossom, 228 Mo. 566; Fellows v. Wise, 55 Mo. 413; Zweigart v. Reed, 221 Mo. 33; State Bank v. Frame, 112 Mo. 502; Barrett v. Davis, 104 Mo. 549. (3) Where there had been no appearance of the defendant and an execution is issued to and other than the county of his residence, notice thereof must be given to such defendant. Sec. 1651, R. S. 1919; Young v. Schofield, 132 Mo. 650; Harness v. Cravens, 126 Mo. 260; Ray v. Stobbs, 28 Mo. 35. (a) That plaintiffs should have received personal notice of the institution of the tax suit is unquestionable, and the judgment, sale and deeds herein in law and justice should be set aside. State ex rel. v. Wessell, 237 Mo. 593; State ex rel. v. White, 75 Mo.App. 257; State ex rel. v. Horine, 63 Mo.App. 1. (b) Courts do not reverse judgments except for errors prejudicial to the appellant. "The utmost to which the appellant is entitled is the amount of the judgment and costs, which have already been paid into the court by respondents. The sheriff had in his hands and also deposited in court a sufficient sum to cover the remainder of the amount bid at the sheriff's sale, so the entire amount bid is now in court subject to the order of the purchaser, and all parties interested State, County and purchaser regulated to the position they occupied before suit was filed." State ex rel. v. Wessell, 237 Mo. 603; McGuire v. Nugent, 103 Mo. 161; State ex rel. v. Boeffer, 63 Mo.App. 151; Bellessime v. McCoy, 1 Mo. 318.

Sturgis, C. Seddon and Ferguson, CC., concur.

OPINION

STURGIS

This suit is to determine title to eighty acres of land in McDonald County. The petition is in two counts, the first in conventional form under the statute, and the second specifically praying the court to set aside the judgment, sale and sheriff's deed entered and made in and as a result of a suit for taxes against said land. The pleadings need not be discussed, as same made the case one in equity, resulting in a judgment setting aside the sheriff's sale and deed conveying the land to defendant Armstrong and a deed from him to defendant Day, and vesting the title in plaintiffs. The plaintiffs offered in their petition, and the court required them to pay into court, for defendants' use, a sufficient amount to make good the amount defendant Armstrong paid for the land at the tax sale. This amount had more than paid the judgment and costs of the tax suit and sale thereunder. The defendants have appealed.

It is conceded that the title to this land was in plaintiffs at the time and prior to the tax suit, judgment and sale thereunder; and the defendants claim title thereunder, and as against any defects or irregularities in the tax suit, judgment or sale, defendants claim to be innocent purchasers for value and without notice.

The suit for taxes resulting in the sale of plaintiffs' land was commenced in June, 1926, for the taxes of 1923, and judgment was entered in usual form at the August Term, 1926, of the McDonald County Circuit Court. There was an allegation of non-residence of the defendants in the tax suit (plaintiffs here) and the only service had was by publication in a newspaper of that county. It is alleged and proven, without contradiction, that these plaintiffs, defendants in the tax suit, never had been non-residents of this State, and at that time their residence was at Kansas City, in Jackson County. It is also shown and conceded that these plaintiffs had no actual notice or knowledge whatever of the institution or pendency of the tax suit against their land or the judgment or sale of the same till nearly a year after such sale and the recording of the sheriff's deed. The sale took place at the February Term, 1927, and the sheriff's deed to defendant Armstrong, the purchaser, was at once made and recorded, and about a week later Armstrong conveyed the land to defendant Day by warranty deed, though defendant Banks was the real purchaser from Armstrong. As soon as plaintiffs learned that their land had been thus sold for taxes, they promptly investigated the matter and brought this suit.

It should be said in this connection that plaintiff Thomas M. Black had been reared and was engaged in business in the vicinity of this land and was well known there, and there his father and one or more brothers had lived and died, and there one brother and other relatives were yet living. Also the plaintiff was frequently in that neighborhood and had been there much of his time in recent years in connection with the settlement of a brother's estate. He had bought this land in 1924, about eighteen months prior to the commencement of the suit for taxes and the making of the order of publication, and his last muniment of title was a recorded trustee's deed to him on a foreclosure of a deed of trust, reciting therein that he, as grantee, was of Jackson County, Missouri.

The County Collector who brought the suit for taxes had employed and was assisted by an abstract firm whose duty it was to examine the records and ascertain the present or record owners of the land. Such information was then used by the Collector and tax attorney in bringing suits for taxes. In this particular case the land had not been assessed against plaintiffs as owners, and in ascertaining the record owners the abstracter must have looked at this deed and ascertained not only that plaintiffs were the record owners, but that they resided in Jackson County, Missouri. In addition to this available and actual information as to plaintiffs' residence, the County Collector had received and answered a letter from plaintiff in December, 1924, asking for a statement of the taxes, current and delinquent, on this land. This letter and reply gave plaintiffs' Kansas City address. The Collector's only explanation of why the suit was brought and order of publication had against ...