Bland v. Windsor & Cathcart

• Decision Date: 21 February 1905
• Citation: 187 Mo. 108,86 S.W. 162
• Court: Missouri Supreme Court
• Parties: BLAND v. WINDSOR & CATHCART et al.

86 S.W. 162

187 Mo. 108.

BLAND v. WINDSOR & CATHCART et al.

Supreme Court of Missouri, Division No. 2.

February 21, 1905.

TAXATION — ACTION TO RECOVER TAXES — PLEADING — JUDGMENT — VARIANCE — VALIDITY OF JUDGMENT — MARRIED WOMEN — CONTRACTS — QUIETING TITLE — LACHES.

1. Rev. St. 1879, § 6837, provides that taxes due on land by the same owner for different years in a suit for the recovery of such taxes may be included in one count, but requires the petition to show the different years for which taxes are due; and by section 6838 the judgment must recite the year or years for which the taxes are due. Held, that a judgment in an action for delinquent taxes for the year 1877, when the action was predicated upon back taxes for the year 1876, was invalid.

2. Under the statute in force at the time that a married woman, in 1858, assigned a certificate of purchase given her by the receiver of the land office, such assignment gave the assignee no rights, owing to the assignor's coverture, and her subsequent acquirement of the legal title by patent to her did not inure to the benefit of the assignee.

3. Under the statute in force at the time that a married woman, in 1858, assigned a certificate of purchase given her by the receiver of the land office, the invalidity of the assignment, owing to her coverture, was not such that it could be invoked only by her, but could be invoked by any one interested in the title.

4. A grantee, who received his deed August 24, 1900, and commenced suit January 22, 1901, to quiet title as against a cloud prior to his deed, was not guilty of laches.

5. Where, after the assignment of a certificate of purchase issued by the receiver of the land office, the assignor received a patent, the assignee of the certificate could not, owing to laches, 42 years after the issuance of the patent, have the holder of the legal title claiming under the patentee declared a trustee, the patent having been duly recorded the year after its issuance.

6. In a suit to quiet title, evidence that plaintiff once went upon the land and directed another to put up a fence, which was done, though the fence was not a substantial one, sufficiently showed possession entitling him to maintain the suit.

Appeal from Circuit Court, Phelps County: L. B. Woodside, Judge.

Suit by H. O. Bland against J. D. Morris and others. From a decree in favor of complainant, defendants appeal. Affirmed.

Respondent began this suit on the 22d day of January, A. D. 1901, upon a petition in equity to quiet title and to divest the appellants of any title to certain lands in Phelps county, Mo., to wit, the southwest quarter of section 27, township 38, range 7, and averred: That the title to said real estate passed out of the United States to one Lucretia S. Wortman on the 2d day of May, 1859, by deed of patent from the United States to her, which deed of patent was duly recorded in the recorder's office in Phelps county, Mo., in Deed Record A, at page 314. That afterwards, to wit, on the 25th day of May, 1888, the said Lucretia S. Wortman, by her deed of conveyance, duly executed and acknowledged, for a valuable consideration, conveyed all of said real estate to one Albert M. Wortman, which deed is of record in the recorder's office of Phelps county, Mo., in Deed Record Book 24, at page 120. That afterwards, to wit, on the 13th day of August, 1900, said Albert M. Wortman, together with his wife, for a valuable consideration, conveyed by their deed, duly executed and acknowledged, all of said real estate to one R. H. Black, which deed is of record in Deed Record No. 41, at page 472, of the records of Phelps county, Mo. That afterwards, to wit, on the 24th day of August, 1900, the said R. H. Black, for a valuable consideration, conveyed by his deed, duly executed and acknowledged, all of said real estate to this plaintiff, which deed is of record in the recorder's office in Phelps county, Mo., in Deed Book No. 41, at page 482. That at the February term, 1880, of the circuit court of Phelps county, Mo., there was pending a certain cause of action wherein the state of Missouri ex rel. C. V. Sanford, collector of the revenue of Phelps county, Mo., plaintiff, and D. D. Wilson, J. D. Morris, and Lucretia S. Wortman, were defendants. Said suit purported to be founded upon a tax bill for the year 1876 against the real estate aforesaid. That upon the purported tax bill, pleadings, and service in said cause a judgment was rendered against the said real estate aforesaid for delinquent taxes for the year 1876 in the sum of $13.44, and $4.21 interest thereon, which judgment was by the court adjudged to be a special lien on all of said real estate. That said judgment rendered at the February term, 1880, of the circuit court of Phelps county, Mo., was so rendered without any service of process, either by personal service of summons or by an order of publication as to the said Lucretia S. Wortman or Albert M. Wortman, and that they had no notice whatever of the pendency of said suit at the February term, 1880, nor was there any tax bill or pleading that would support the finding in said judgment. That said judgment was null and void, and said court had no jurisdiction over the owners of the realty. The petition further avers the sale under said judgment was null and void, and that at the said sale J. L. Brown was the highest and best bidder, and that the notice stated that the sale was for the unpaid taxes for the year of 1876 against said land; that by virtue of said sale the sheriff duly executed and acknowledged his deed, which was recorded in Book X, at page 115, of the records of Phelps county, Mo.; a true copy of said deed was filed, marked "Exhibit A," and made a part of plaintiff's petition; that said J. L. Brown and wife afterwards conveyed all of their right, title, and interest to J. L. Windsor and A. J. Cathcart, which said deed is of record in Deed Book 28 of the records of Phelps county, Mo.

The defendants' answer filed in said cause was substantially as follows: That on the 22d day of June, A. D. 1857, one Lucretia S. Wortman purchased from the United States of America the southwest quarter of section 27, township 38, range 7, and paid therefor in cash $400, which said purchase was made at the United States Land Office at St. Louis, Mo., and the register of the land office issued to said Lucretia S. Wortman its certificate of purchase No. 29,904, of date June 22, 1857, and signed by A. N. Duty, receiver of said land office, thereby conveying said land to the said Lucretia S. Wortman; and that on July 28, 1858, the said Lucretia S. Wortman, for $400 to her paid by one John McChesney, sold and assigned said land to him by then and there executing and delivering to him an assignment of said land certificate duly attested and acknowledged. Said certificate and the assignment thereof were duly indexed and recorded on pages 89 and 90 of Book A of the land records of Phelps county, Mo. That John McChesney and wife, on the 24th day of January, 1859, for $500, executed and delivered to Clark Bradley their warranty deed conveying said real estate to him, which deed is of record in Book A, at page 90, of the records of Phelps county, Mo. That on December 5, 1867, Clark Bradley and wife, for $500, by warranty deed duly executed and acknowledged, conveyed said real estate to Benjamin C. Bradley, which deed is duly recorded in Book E, at page 81, of the records of Phelps county, Mo. That on January 24, 1868, the said Benjamin C. Bradley, for and in consideration of the sum of $500, conveyed said real estate by warranty deed to Joseph D. Morris, which said deed is duly recorded in Deed Book E, at page 191. That on the ____ day of ____, 1901, the said Joseph D. Morris, by his deed duly conveyed said land to these defendants, which said deed is duly recorded on page ____, Book ____, records of Phelps county, Mo. Defendants further aver that on the 7th day of August, 1880, one P. M. Gaddy, as sheriff of Phelps county, Mo., by virtue of an execution issued on a judgment of the circuit court of Phelps county for back taxes, which said judgment was duly and properly rendered against Lucretia S. Wortman, D. D. Wilson, and Joseph D. Morris, and by virtue of sale thereunder, sold said land to J. L. Brown, and executed to him a deed therefor, which deed was duly recorded on page 115, of Book X, records of Phelps county, Mo.; and further aver that by reason of all of said conveyances they became and are fully vested of all the right, title, and equity of the said Lucretia S. Wortman acquired by her said certificate No. 29,904.

The replication of plaintiff was substantially as follows: The plaintiff denied all new matter set up in defendants' answer, especially of fraud. Plaintiff also pleaded that Lucretia S. Wortman was under the disability of coverture, and was incompetent, either in law or equity, to make said assignment. The plaintiff further stated that neither defendants nor any person or persons under whom they claim had been in possession of said premises, or any part thereof, within 10 years next before the commencement of this suit, or have asserted any title thereto adverse to the title and claim of the plaintiff and the persons under whom he claims title. The plaintiff further alleged that the defendants are estopped by their laches to assert any claim, legal or equitable, adverse to the title of the plaintiff or that of his grantors, for the reason that, if any cause of action they had, the same accrued to them more than 10 years before the filing of the answer herein, or more than 10 years before the filing of this suit. The plaintiff further alleged that the pretended assignment under which defendants set up their pretended claim of an equitable title to the premises herein, and under which they seek to charge Lucretia S. Wortman as a trustee holding the title to the premises for their use and benefit, is fraudulent and void under the...