Clyburn v. McLaughlin

• Decision Date: 16 November 1891
• Citation: 17 S.W. 692,106 Mo. 521
• Parties: CLYBURN et al. v. McLAUGHLIN et al.
• Court: Missouri Supreme Court

17 S.W. 692

106 Mo. 521

CLYBURN et al. v. McLAUGHLIN et al.

Supreme Court of Missouri, Division No. 2.

November 16, 1891.

EJECTMENT — ESTOPPEL AS A DEFENSE — TAX-SALE — RATIFICATION.

1. In Missouri, a plea of estoppel is a sufficient defense in an action of ejectment, since equitable defenses may be set up in such actions.

2. In ejectment for land held under a tax-title it appeared that the amount bid at the tax-sale exceeded the taxes due; that plaintiff afterwards investigated the sale, and finally, with knowledge of all the facts, accepted the surplus of the proceeds remaining after payment of the taxes due. Held, that plaintiff ratified the sale, and could not afterwards impeach its validity.

Appeal from circuit court, Vernon county; D. P. STRATTON, Judge. Affirmed.

Action of ejectment by William R. Clyburn and another against Thomas McLaughlin and others. Judgment for defendant.

T. J. Meyers, for appellants. Irvin Gordon, for respondents.

MACFARLANE, J.

This is a suit in the usual form of ejectment to recover possession of two forty-acre tracts of land in Vernon county. The answer was a general denial, estoppel, and laches in commencing this suit. In the plea of estoppel it is alleged, in substance, that the land in controversy was sold in May, 1880, upon execution under a judgment of the circuit court of Vernon county against plaintiffs for delinquent taxes, and purchased by S. A. Wight, and that defendants are in possession and claim title under mesne conveyances from him; that under the sheriff's sale there was a surplus of $76.81 after payment of taxes, interest, and costs, which plaintiffs, being advised of all the facts, demanded and received from the sheriff, thus ratifying and confirming the sale; and that defendants, in purchasing the lands from their grantors, relied upon the fact that plaintiffs had thus ratified the sale. Defendants also alleged, in substance, that plaintiffs, with knowledge of all the facts, stood by for years, and saw defendants and their grantors enter into possession of the land under said deed, and make valuable and lasting improvements thereon, without objection. The reply was a general denial. On the trial defendants read in evidence the sheriff's deed, and plaintiffs read the order of publication. Defendants then offered evidence tending to prove the special defenses. Some objections were made by plaintiffs to the validity of the judgment, sale, and deed. The court found for defendants, and judgment was rendered against plaintiffs for costs, and they appeal.

1. The question for first consideration is whether the plea of estoppel, if sustained by the proof, constituted a good defense to the action of ejectment. It is well settled in this state that under our Code of Civil Procedure a defendant in an action of ejectment may by answer interpose an equitable defense, and that his equities may be tried and determined directly in that action, without having to resort to an independent suit in equity. City of St. Louis v. Lumber Co., 98 Mo. 613, 12 S. W. Rep. 248; Schuster v. Schuster, 93 Mo. 438, 6 S. W. Rep. 259; Allen v. Logan, 96 Mo. 591, 10 S. W. Rep. 149.

2. The issues were tried to the court without a jury. The finding was for the defendants, and judgment was rendered accordingly. There having been no...