Braun v. Petty

• Decision Date: 14 November 2000
• Citation: 31 S.W.3d 521
• Parties: (Mo.App. E.D. 2000) Mary Braun, et al., Plaintiffs/Appellant, v. Nina Petty, et al., Defendants/Respondents. ED77495
• Court: Missouri Court of Appeals

31 S.W.3d 521 (Mo.App. E.D. 2000)

Mary Braun, et al., Plaintiffs/Appellant, v. Nina Petty, et al., Defendants/Respondents.

ED77495

Missouri Court of Appeals Eastern District

11/14/2000

Appeal From: Circuit Court of Gasconade County, Hon. Jeff W. Schaeperkoetter

Counsel for Appellant: Kenneth J. Heinz

Counsel for Respondent: P. Dennis Barks

Opinion Summary: Plaintiffs Mary Braun et al. appeal from the trial court's dismissal of their petition to set aside a collector's deed and to quiet title to certain property purchased by defendants Nina Petty et al. at a tax sale.

Division Two holds: The trial court erred in dismissing the petition because (1) the allegations contained therein were sufficient to state a cause of action, and (2) it was not clear from the petition that the action was barred by the statute of limitations.

William H. Crandall, Jr., Judge

Plaintiffs, Mary Braun, et al., appeal from the trial court's dismissal of their petition to set aside a collector's deed and to quiet title to certain property purchased by defendants, Nina Petty, et al., at a tax sale. We reverse and remand.

Plaintiffs, individually and as trustees of the Ellis Farm Road and Park Association, brought the present action against defendants, seeking to set aside a collector's deed and to quiet title to certain property. In their petition, plaintiffs alleged that they held property located in Gasconade County, Missouri, as a park for the benefit and use of the property owners in Ellis Farm. They alleged that Nina Petty received a deed from the Collector of Revenue of Gasconade County, after paying $650.00 for 30.54 acres of land on which their successors in interest failed to pay property taxes for the years of 1985 and 1986. They further alleged that the collector's deed was void "due to the fact that Plaintiff's predecessors in title were not provided with notice of any tax sale and due to the fact that the deed is so vague." Plaintiffs requested the court to declare the collector's deed null and void and to quiet title to the property in their names.

Defendants filed a motion to dismiss plaintiffs' petition on the grounds (1) that the petition failed to state a claim upon which relief may be granted and (2) that section 140.590, RSMo (1994), the applicable statute of limitations, barred plaintiffs' action to set aside the tax sale to defendants. The trial court sustained defendants' motion to dismiss on the basis of the three year statute of limitations. Plaintiffs filed a motion either to amend the order or to set aside the order and grant leave to file their first amended petition. At plaintiffs' request, the trial court entered a "judgment," again sustaining defendants' first amended motion to dismiss.¹ Plaintiffs appeal from that judgment.

In their first point, plaintiffs contend the trial court erred in dismissing their action (1) because they properly pleaded that the tax collector's deed was void because the description of the property was too vague and (2) because the $650.00 paid for the property was inadequate consideration.

As to their first argument with regard to the validity of the collector's deed, they contend that the sale was invalid under section 140.530, RSMo (1994), which provides in relevant part: "No sale or conveyance of land for taxes shall be valid if . . . the description is so imperfect as to fail to describe the land or lot with reasonable certainty . . . ." The deed described the property as "PT NW FR; PT SW FR; PT W 1/2 SE AC: 30.54 Section 6, Township 43, Range 6."

When reviewing the dismissal of a cause of action, we examine the pleadings, allowing the broadest intendment, treating all alleged facts as true, and construing the allegations in favor of the pleader, to determine whether they invoke principles of law. Olean Assoc., Inc. v. Knights of Columbus, 5 S.W.3d 518, 521 (Mo. App. E.D. 1999). A petition is not to be held insufficient merely because of a lack of definiteness or certainty. Wallis v. St. Louis County, 563 S.W.2d 93, 95 (Mo. App. 1978). If it appears that the cause of action is barred by time limitations, the motion to dismiss is properly sustained. Olean Assoc., 5 S.W.3d at 521. A motion to dismiss properly raises the defense of statute of limitations. Id. If the statute of limitations is raised as an affirmative defense, the trial court may not dismiss the petition unless it is clearly established on the petition's face and without exception that the cause of action is time barred. Id.

Section 140.590 sets a three year statute of limitations on actions brought to defeat the sale of land for taxes: "Any suit or proceeding against the tax purchaser . . . for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes . . . shall be commenced within three years from the time of recording the tax deed . . . ." If the land description in the tax deed is void on its face, however, it does not start the running of the three year statute of limitations. Heppler v.Esther, 534 S.W.2d 533, 537 (Mo. App. 1976). Therefore, the threshold issue is whether the indefiniteness of the description could void the deed on its face, with the result that the statute of limitations would not start to run and the present action would not be time barred.

A land description is sufficiently definite if one reasonably skilled in determining land locations can locate it. Wayward, Inc. v. Shafer, 936 S.W.2d 843, 845 (Mo. App. E.D. 1996). It is not required that a deed contain a sufficient description so that, based on it alone, the property can be located. Podlesak v. Wesley, 849 S.W.2d 728, 731 (Mo. App. S.D. 1993). Extrinsic facts pointed out in the description may be used to identify the land conveyed. Id. A court will declare a deed void for uncertainty of description only where, after relying on oral proof or other extrinsic evidence, the property conveyed by the instrument remains a matter of conjecture. Id. at 733.

In Ijames v. Geiler, 783 S.W.2d 934 (Mo. App. 1989), this court found that a collector's deed describing the property as "Part Lot 21 .80 Acres Survey # 2991 School Dist. C-6 Road Dist. # 13 " failed to describe the property with reasonable certainty. In Moise v. Robinson, 533 S.W.2d 234 (Mo. App. 1975), the court held that a collector's deed with the legal description "Pt. Lot 2 SW 1/4, Section 18, Township 40, Range 3" also failed to describe the property with reasonable certainty. In each of these cases trials were held and evidence adduced. In Podlesak, 849 S.W.2d at 728, this court found that the trial court improperly granted summary judgment because there was a material issue of fact as to the sufficiency of a description of "Section 20 Township 39 Range 16 Pt Lot 8 Beg at Pt on W' Ly R/W 30' Road that is 1229' N & 522' W SE 08 4.0 20.0 000 001 002.002" to identify the land intended to be conveyed.

In the instant action, the description of the property in the deed attempted to comply with the usual mode of describing subdivisions of land according to the United States Government Survey. Hagerman v. Thompson, 235 P.2d 750, 758 (Wyo. 1951). In that system, there are sixteen different subdivisions of a section of the survey and each of those subdivisions ordinarily contains 40 acres. Id.

Here, the description in the deed contained the letters NW, SW and SE, none of which was followed by any numerals, such as 1/4. Because the trial court dismissed the action, there was no evidence that the abbreviations NW, SW, or SE, without any accompanying symbols to denote the quarter section, could be understood to...