Cockerill v. Stafford

• Decision Date: 01 December 1890
• Citation: 14 S.W. 813,102 Mo. 57
• Parties: COCKERILL v. STAFFORD.
• Court: Missouri Supreme Court

14 S.W. 813

102 Mo. 57

COCKERILL v. STAFFORD.

Supreme Court of Missouri.

December 1, 1890.

REDEMPTION FROM TAX-SALE — LIMITATION — RES ADJUDICATA — PLEADING.

1. The payee of a note secured by deed of trust duly recorded is entitled to redeem the land from a sale under a judgment for taxes to which he was not a party, though the trustee was joined as a defendant, and the statute of limitations does not begin to run against the suit to redeem until the purchaser takes possession.

2. A right to redeem from a tax-sale was pleaded as an equitable defense to an action of ejectment brought by the purchaser, but the defense was withdrawn at the trial. Held, that a judgment for the purchaser was no bar to a subsequent suit to redeem.

3. When a petition states that a deed was recorded in the recorder's office of the county, giving the book and page, the objection that the date of the record is not given must be taken by special demurrer or by motion to make more definite and certain and not by demurrer for want of facts to constitute a cause of action.

Appeal from circuit court, Saline county; RICHARD FIELD, Judge.

The plaintiff, Harry W. Cockerill, trustee of Martha Kate Cockerill, sought by this proceeding which he instituted in the fall of 1886, to redeem certain land from a tax-sale thereof, made on the 30th day of October, 1878, at which sale Mary E. Stafford became the purchaser, receiving a deed from the sheriff. To the petition of plaintiff, defendant interposed the following demurrer: "Now comes the defendant and demurs to the plaintiff's amended petition, and says the same does not state facts sufficient to constitute a cause of action against the defendant in this — First. Because this is an action to redeem based upon a mortgage executed on the 15th day of August, 1863, executed by James A. Clark to secure the several debts mentioned in the petition of plaintiff, claiming that said mortgage, given more than 20 years before the institution of this suit, was a lien upon the real estate described in the petition; and that, by virtue of such lien, the plaintiff seeks by the petition to be permitted to redeem, when in law the plaintiff's cause of action, if he ever had any, is barred by the statute of limitations of this state in such cases made and provided as shown by the facts stated in the petition, and it therefore shows plaintiff has no right to recover. Second. Because plaintiff's petition shows that this defendant, on the 20th day of February, 1880, instituted an action of ejectment in this court for the possession of said real estate; and that plaintiff's grantor set up the same defense in said suit, claiming the right to redeem, as herein claimed in his petition, in this suit; and that plaintiff voluntarily abandoned such defense in cause and in law while he did make, and it was his duty to make, such defense, if he had such defense in such action, such failure to make or establish such defense by proper evidence at that time, the plaintiff is now estopped and barred by such failure and judgment in said cause from now making such claim of a right to redeem as sought in plaintiff's petition. Third. Because more than 10 years have elapsed since the cause of action arose before the institution of this suit. Fourth. Because, from the statement of plaintiff's petition, the mortgage was given by him more than 15 years prior to defendant's purchase at the tax-sale mentioned, and at that time had lost its lien, and was barred by the statute of limitations; and that it could not have been a mortgage lien upon the real estate at the time of her purchase at the tax-sale, or one of which she was bound to take notice, and she was an innocent purchaser, as shown by plaintiff's petition. Fifth. Because, from the showing of the plaintiff's petition, his action is barred by equitable laches in failing to insist upon a right to redeem until the institution of this suit and by voluntarily abandoning such claim, and leaving the defendant to improve and pay taxes upon the land without notice that such pretended claim would be made after such abandonment. Sixth. Because the recovery of a personal judgment, in 1871, upon the note against James A. Clark et al., instead of foreclosing the mortgage, was more an abandonment of the mortgage lien, and it is not shown by the petition that such judgment was on record in this county where the land is situated; and, while it might have merged the note in judgment, it would not and did not in law in any manner have any effect to keep alive the mortgage lien or prevent its bar by limitations; and, from aught that appears in the plaintiff's petition, she had a right to presume said mortgage satisfied at the time of her purchase at the tax-sale. Seventh. Because the plaintiff's amended petition fails to state any cause of action." The circuit court held the petition insufficient, and rendered judgment accordingly, from which the plaintiff appealed.

T. Shackelford and H. W. Cockerill, for appellant. W. D. Bush and Sam'l Davis, for respondent.

SHERWOOD, J.

From the voluminous...