Cowell v. Gray

• Decision Date: 31 October 1884
• Citation: 85 Mo. 169
• Parties: COWELL, Appellant, v. GRAY.
• Court: Missouri Supreme Court

85 Mo. 169

COWELL, Appellant,

v.GRAY.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Macon Circuit Court.--HON. ANDREW ELLISON, Judge.

REVERSED.

R. S. Matthews and W. M. Rubey for appellant.

(1) The word owner, means the person, or persons in whom the fee is vested, and also those who have an equitable title or ownership. But such interests, whether legal or equitable, must appear of record at the time the suit is commenced. (2) In the tax suit, by which defendant derived title, the only person sued was Gray, who, at the time, had only an equity of redemption; the legal title having been conveyed by Rowland and his wife to F. M. Buster, in trust for plaintiff, before the institution of the tax suit and before Gray bought the equity of redemption of Rowland. (3) The legal title was in F. M. Buster, trustee for plaintiff. Neither the owner of the legal title nor the cestui que trust was made a party to the suit and consequently the legal title did not pass by the sale under tax proceedings. The purchaser at that sale bought himself into the equitable rights of the mortgageor, Rowland, and nothing more, which he had before tax suit. Gitchell v. Kreidler, 12 Mo. App. 437.

W. H. Sears for respondent.

EWING, C.

On the twenty-seventh day of August, 1879, the plaintiff, Cowell, commenced suit in the Macon circuit court to recover the possession of the northwest quarter of the southwest quarter of section seven, township fifty-six, range thirteen. The defendant answered, alleging title and possession in himself. It appears from the evidence that both parties claim under conveyances from Wm. B. Rowland, who was the original owner of the land sued for. That on April 1, 1878, Rowland executed and delivered a deed of trust to the premises to one Buster, as trustee for the plaintiff, Cowell. That deed of trust was filed for record April 27, 1878. Afterwards, a sale was had under this deed of trust by the sheriff of Macon county, acting for the trustee in his absence, at which sale the plaintiff, Cowell, became the purchaser. This deed is dated and acknowledged on the twenty-fourth day of July, 1879. The record does not show that this deed was recorded or filed for record. The plaintiff rested, and the defendant's evidence was a deed from Rowland to defendant, Gray, dated July 17, 1878, and a deed from the sheriff of Macon county to one J. W. Waller, dated January 29, 1879, and a deed from Waller to defendant, dated February 11, 1879. It was alleged in defendant's answer that the deed from the sheriff to Waller was made by virtue of an execution sale. That the collector of Macon county recovered judgment for back taxes on said land against defendant on the twenty-eighth of September, 1878, which was a lien on the land; that execution issued thereon and that the said Waller became the purchaser, etc.

It appears from the recitals in the sheriff's deed, under the tax-judgment, that the defendant, Gray, was the only party defendant to the suit of the collector for taxes. The judgment itself is not in the record, and the only information upon that subject appears from the recitals in the sheriff's deed. The deed of trust was filed for record on the twenty-seventh of April, 1878, and the judgment for taxes rendered September 28, 1878. But whether the deed of trust was so filed before the commencement of the suit for taxes does not appear. Section 6837, Revised Statutes, 1879, provides that suits for taxes shall be “against the owner of the property.' This court in Vance v. Corrigan, 78 Mo. 94, in construing the charter of Kansas City, under and by authority of which the suit for taxes had been commenced and prosecuted, said that “the charter of the City of Kansas provides that all suits to enforce special tax bills, shall be brought against the owner of the land,” etc., and notwithstanding the fact in that case that the person who appeared of record as the owner, had conveyed his interest to another, yet it was held that a sale under the judgment against the owner...