Bullock v. Johnson

• Decision Date: 08 September 1942
• Docket Number: 38025
• Parties: George Bullock v. W. J. Johnson et al., Appellants
• Court: Missouri Supreme Court

166 S.W.2d 573

350 Mo. 443

George Bullock v. W. J. Johnson et al., Appellants

No. 38025

Supreme Court of Missouri

September 8, 1942

As Modified on Denial of Rehearing December 1, 1942.

Appeal from Scott Circuit Court; Hon. James C. McDowell judge.

Affirmed.

C E. Rendlen, F. D. Wilkins, C. M. Buck and Edward F Sharp for appellants.

The points and authorities cited in the brief in the case of Gee v. Bullock, 349 Mo. 1154, 164 S.W.2d 281, are hereby adopted and incorporated herein by reference.

Merrell Spitler and Ward & Reeves for respondent.

(1) In the original suit the Himmelberger-Harrison Lumber Company was in no way named or designated as a defendant, and since only defendants who are made parties and constructively served can have their petition for review, the appellant in this case who claims now through Himmelberger-Harrison Lumber Company, cannot maintain a petition for review of the judgment. Ewart v. Peniston, 233 Mo. 695; Brooks v. McCray, 145 S.W.2d 985; Dillbeck v. Johnson, 129 S.W.2d 885. (2) A third party, a stranger to the prior action, cannot invoke the prior suit or judgment as tolling the Statute of Limitations. Tiffin v. Leabo, 52 Mo. 49; Goldschmidt v. Pevely Dairy Co., 314 Mo. 982; Claflin Co. v. Middlesex Banking Co., 113 F. 958; Midland Oil Co. v. Moore, 2 F.2d 34; 37 C. J. 1046, sec. 457. Reference is made to the points and authorities in the brief in the case of Gee v. Bullock, 349 Mo. 1154, 164 S.W.2d 281.

Douglas, P. J. All concur except Hays, J., absent.

OPINION

DOUGLAS

This is a suit to quiet title to Section 24 in Township 21 North, Range 11 East, in New Madrid County.

Plaintiff claimed title through a tax sale. Unknown defendants in this suit were served by publication. None appeared. Those personally served made default. Judgment was for plaintiff. Thereafter Everett B. Gee and Farm Industries, Incorporated, each filed petitions for review to set aside the judgment under the provisions of Section 1247, R. S. 1939. The petitions were granted, the judgment was set aside and leave was given petitioners to file answers. Only Gee filed an answer. He also filed a cross bill. The court entered a decree adjudging title to the land in plaintiff free and clear of all claims of defendants. Gee appealed.

This is a companion case to Gee v. Bullock, 349 Mo. 1154, 164 S.W.2d 281. The issues are the same and arise under the same evidence. The record in that case by the stipulation of the parties constitutes the record in this suit. Both cases arise out of the same transaction and the same state of facts, except that in this suit different lands are involved and different parties are interested. As in that case, Gee bases his claim to the land in this suit on his ownership of the same two notes for $ 294,000 and for $ 49,000 secured by deeds of trust on this land. We fully considered this claim and found that the tax sale had extinguished the liens of these deeds of trust so that Gee had no interest in the lands which they covered. As the deeds of trust included the land involved in this suit it must follow that Gee has no claim to it.

Gee vigorously continues the argument commenced in still an earlier companion case (Bullock v. E. B. Gee Land Co., 347 Mo. 721, 148 S.W.2d 565) and carried on in Gee v. Bullock, supra, that the tax sale was void because the actual owner of the land, as distinguished from the record owner, although known, was not made a party to the tax proceedings.

In the first companion case Gee attempted to prove that the Darby-Day Investment Company, a Chicago company, was such owner of the property through an unrecorded deed also executed by Morrison at the same time he executed the two notes and deeds of trust. Gee claimed that such deed was lost. In an attempt to establish the deed by secondary evidence he offered to prove that the original deed was executed and delivered by Morrison to one Downie, an employee of the Darby-Day Company. We held that the trial court properly rejected the offer of proof because no diligence was shown in attempting to locate the original deed. Speaking of the character of the proof offered this court said: "Even if this offer of proof had been sustained and the evidence received, we would not be strongly impressed with its probative value. While the effort was being made to introduce this evidence one of appellants' counsel stated that the witness did not know the name of the grantee in the alleged lost deed. The offer of proof stated that the deed was delivered to one Downie. Downie was a defendant and his deposition was taken and filed in the case, but he was not asked about any deed being executed by Morrison at the time the latter executed the deeds of trust. Downie did say that Morrison conveyed the land by quitclaim to Farm Industries, Inc., but that company was not organized until 1935, nearly six years after the deeds of trust were executed. The witness, Morrison, filed an answer in the instant case, later withdrawn, in which he claimed to own the land." 347 Mo. 721, 148 S.W.2d l. c. 567.

The same evidence adduced in that case was also used in the instant case. The bill of exceptions of that case is included in the one of ...