Bullock v. E. B. Gee Land Co.

• Decision Date: 13 March 1941
• Docket Number: 36676
• Parties: George Bullock v. E. B. Gee Land Company, a Corporation, et al.; Everett B. Gee and Farm Industries, Inc., a Corporation, Appellants
• Court: Missouri Supreme Court

148 S.W.2d 565

347 Mo. 721

George Bullock v. E. B. Gee Land Company, a Corporation, et al.; Everett B. Gee and Farm Industries, Inc., a Corporation, Appellants

No. 36676

Supreme Court of Missouri

March 13, 1941

Appeal from Scott Circuit Court; Hon. Frank Kelly, Judge.

Affirmed.

Edward F. Sharp and C. M. Buck for appellants.

(1) The holder of a deed of trust on real estate is a necessary party to a suit for taxes, and if not made a party, his interests are not affected by the judgment rendered in the tax suit and he has the right to redeem from the tax sale. Stafford v Fizer, 82 Mo. 399; Allen v. McCabe, 93 Mo. 144; Boatmen's Savs. Bank v. Grewe, 84 Mo. 478; Giraldin v. Howard, 103 Mo. 45; Landau v Cattrill, 159 Mo. 315; State ex rel. v Reynolds, 213 S.W. 69; Barrie v. Whitton, 13 S.W.2d 47; Hider v. Sharp, 257 S.W. 113; Little River Drain. Dist. v. Sheppard, 7 S.W.2d 1014; Mo. Real Estate & Loan Co. v. Gibson, 220 S.W. 677, 282 Mo. 75; Bell v. Ham, 188 Mo.App. 71, 173 S.W. 744; Williams v. Hudson, 93 Mo. 529; Taff v. Tallman, 277 Mo. 163, 209 S.W. 868; Hilton v. Smith, 134 Mo. 507; Zweigart v. Reed, 221 Mo. 45; Keaton v. Jorndt, 168 S.W. 738; Stuart v. Ramsey, 196 Mo. 417; Construction Co. v. Ice Rink Co., 242 Mo. 253; Adams v. Gossom, 228 Mo. 566. (2) The rule permitting the taxing authority to sue the owner as shown by the record has never been held to apply to one whose title is not required to be placed of record. For example, it does not apply to: (a) Heirs of a deceased title record holder. (Title by descent). (b) Parties whose title is based on adverse possession. (c) Where the taxing authorities knew that the party appearing of record to be the owner, was not the actual owner. (d) Where the purchaser at the tax sale has knowledge of an outstanding title not of record. (e) Anyone whose title is based on an instrument not necessary to be recorded in the local land records. Williams v. Hudson, 93 Mo. 527; Bell v. Ham, 173 S.W. 744, 188 Mo.App. 71; Adams v. Gossom, 228 Mo. 566; Perkinson v. Meredith, 158 Mo. 457; Gay v. Cantwell, 191 Mo. 898; Cases under Point 1. (3) There is no law in this State requiring that an assignment of a note secured by a deed of trust be placed of record and absent such requirement, recording would not be constructive notice of such assignment. Holmes v. Doe Run Lead Co., 223 S.W. 779; Brown v. Baldwin, 121 Mo. 115; Mason v. Black, 87 Mo. 342; Speck v. Riggin, 40 Mo. 405; Vaughn v. Tracy, 22 Mo. 415; Sec. 3040, R. S. 1929; Heintz v. Moore, 246 Mo. 226, 151 S.W. 449. (4) The assignment of a promissory note secured by a deed of trust carries with it control of the deed of trust and thereafter all control of same was lost by the original payee. Joerdens v. Schrimpf, 77 Mo. 383; Hagerman v. Sutton, 91 Mo. 519; George v. Summerville, 153 Mo. 7; King v. King, 182 S.W. 1047; Lee v. Clarke, 89 Mo. 553; State Bank of St. Louis v. Frame, 112 Mo. 502; Morrison v. Roehl, 215 Mo. 545; Cooper v. Newell, 263 Mo. 190, 172 S.W. 526; Hellweg v. Bush, 74 S.W.2d 89. (5) Proceedings for the collection of taxes by drainage districts are governed by the same procedure authorized by statute in the collection of State and county taxes and this includes service by publication on unknown defendants. Sec. 10765; R. S. 1929. (6) A lost deed may be proved in any one of two ways: By proof of such facts as will raise the presumption of such deed having been made; by direct evidence that such deed was made and has been lost or destroyed. Brooks v. Roberts, 220 S.W. 14, 281 Mo. 551; 38 C. J. 277, sec. 69; Chambers v. Birk, 109 S.W.2d 117; Jones v. Kirk, 270 Mo. 408, 194 S.W. 44; Felker v. Breece, 226 Mo. 520. (7) Where the law requires a thing to be done, the record of doing of such act duly filed and recorded in accordance with such law is competent evidence of the existence of the facts stated therein. 53 C. J., p. 604; Paving Co. v. O'Brien, 128 Mo.App. 284. (8) No common source of title having been agreed upon as to the lands in Section 2, Township 22, Range 12, and plaintiff Bullock having failed to offer proof showing the title to said section, he cannot recover in any event as to that section. Nall v. Conover, 223 Mo. 477; Hunter v. Pemiscot Land & Cooperage Co., 246 Mo. 135, 151 S.W. 714. (9) The plea of laches is not available to the plaintiffs under the facts in this case. Myers v. DeLisle, 259 Mo. 506; Bell v. Ham, 188 Mo.App. 71; Fleming v. Wilson, 277 Mo. 571; Merriweather v. Owerly, 228 Mo. 218; Harttman v. Owens, 293 Mo. 508; Keaton v. Hamilton, 264 Mo. 564; 21 C. J., sec. 211, p. 210; Jones v. Temple, 189 S.W. 847. (10) Plaintiffs in this case cannot challenge the legality of the transactions under which Allan G. Morrison acquired title for the reason that their claim, if any they have, rests solely upon that transaction. In any event, the law would set up a vendor's lien in favor of the holder of the notes because they show on their face they have been executed for the purchase price. Gill v. Clark, 54 Mo. 415; Orrick v. Durham, 79 Mo. 174; Hockaday v. Lawther, 17 Mo.App. 636; Belcher v. Haddix, 44 S.W.2d 177; Hunter v. Hunter, 39 S.W.2d 365. (11) Under the facts in this case plaintiffs are not entitled to set up a charge for improvements claimed to have been made on the lands in controversy for the reasons the law requires such improvements to be made in good faith and the facts in this case show that plaintiff at all times knew of the outstanding claims. Richmond v. Ashcraft, 137 Mo.App. 202; Patten v. Thomas, 246 S.W. 60; Anderson v. Sutton, 308 Mo. 406; Staub v. Phillips, 307 Mo. 576. Parties dealing in real estate are charged with notice of title and rights of the party in possession of premises at the time of purchasing or other transactions. Ballenger v. Windes, 99 S.W.2d 158; Mo. P. & L. Co. v. Thomas, 102 S.W.2d 564; Langford v. Welton, 48 S.W.2d 860. (12) The plea of the special Statute of Limitations provided in Section 9964, Revised Statutes 1929, applies only to tax suits brought under the provisions of the tax laws prior to 1877. Williams v. Sands, 251 Mo. 165; Gulley v. Waggoner, 255 Mo. 620; Bartlett v. Jauder, 97 Mo. 361; Keaton v. Hamilton, 264 Mo. 565, 175 S.W. 970. (13) The tax deeds under which plaintiff claims only purported to sell "all the right, title and interest" of the defendants named, and since they had no interest such deeds were ineffective to pay any title whatsoever. Rothenberger v. Garrett, 224 Mo. 198; Blevins v. Smith, 104 Mo. 592; Wilson v. Fisher, 172 Mo. 18; Farrar v. Patton, 20 Mo. 81; Lewis v. West, 23 Mo.App. 509; McCamant v. Patterson, 39 Mo. 111; Franklin v. Cunningham, 187 Mo. 195; Ridings v. Hamilton Savs. Bank, 219 S.W. 587; Henrick v. Patrick, 7 S.Ct. 157; Mo. Real Estate & Loan Co. v. Gibson, 220 S.W. 675. (14) The tax sales under which plaintiff claims are void for the further reason that the price paid for these lands is so utterly inadequate as to shock the conscience of the chancellor. Mangold v. Bacon, 141 S.W. 657; State v. Nathan, 229 S.W. 177; State ex rel. v. Davidson, 286 S.W. 355; Guinan v. Donnel, 201 Mo. 202; Wertheimer-Swartz Shoe Co. v. Wyble, 170 S.W. 1131; Lange v. McIntosh, 100 S.W. 456; Black v. Banks, 327 Mo. 341, 37 S.W.2d 594.

Merrill Spitler and Ward & Reeves for respondent.

(1) We filed in this case at the time of submission on September 10 1940, a motion on behalf of respondent to dismiss the appellants' appeal and the ground therein relied on, and which was taken under submission along with the case, is that appellants failed to comply with Rules 7 and 13 of this court. We filed an additional abstract of the record and which was authorized by an order entered by this court on September 10, but did not waive the first paragraph of our motion that the abstract of the record was insufficient. The additional abstract of the record brought here shows that appellants are guilty of garbling the record, of failing to set forth the evidence either by questions and answers or in narrative form, and failed to bring here in their abstract of the record numerous exhibits, all of which are necessary to a full and complete understanding of this case, and especially of respondent's theory under the evidence. We are still relying on our motion to dismiss appellants' appeal, and ask the judgment and decision of this court thereon. Rules 7, 13, Sup. Ct.; Nickey v. Leader, 235 Mo. 30; Harrington v. Interstate Sec. Co., 57 S.W. 438; Lyvers v. Rutherford, 230 Mo.App. 921; Cory v. Interstate Sec. Co., 99 S.W.2d 861; Colorado Milling & Elevator Co. v. Rolla Wholesale Gro. Co., 102 S.W.2d 681; Stratman v. Norge Co., 124 S.W.2d 572. (2) Our contention in this case is that the appellants as alleged owners of the two old notes cannot enforce them in this equitable action because they are not owners in good faith and for value. Secs. 2683, 2686, 2687, R. S. 1929; George v. Surkamp, 336 Mo. 1, 76 S.W.2d 368; Meyer Milling Co. v. Strohfeld, 4 S.W.2d 864; Guaranty Bank & Trust Co. v. Bank, 294 S.W. 456; First Natl. Bank v. Johnson, 261 S.W. 705; Gate City Natl. Bank v. Bunton, 316 Mo. 1338; Williams v. Schmeltz, 14 S.W.2d 966; Wilson v. Railroad Co., 120 Mo. 45; Hoeley v. Southside Bank, 280 Mo. 336; Houtz v. Hellman, 228 Mo. 669. (3) The rule is that inadequacy of purchase price paid at tax sale is not sufficient to set aside such sale, though the proceeding be a direct attack on the deed; but a shockingly inadequate price connected with accident, surprise, hardship and unfairness as might naturally account for the inadequacy, will authorize the setting aside of the sale on the ground of inadequacy when so accompanied by such aggravated circumstances, and where to permit the sale to stand would work in such a case great hardship and unfairness. Mangold v. Bacon, 237 Mo. 496; ...