Davis v. Stevens

• Citation: 124 S.W.2d 1132,344 Mo. 24
• Decision Date: 08 February 1939
• Docket Number: 35291
• Parties: Pearl Davis, J. R. Davis, Jr., and S. P. Raidt, Appellants, v. Mrs. J. Q. Stephens and St. John Levee & Drainage District of Missouri, a Corporation, Defendants, Ethel S. Edwards, Appellant
• Court: Missouri Supreme Court

124 S.W.2d 1132

344 Mo. 24

Pearl Davis, J. R. Davis, Jr., and S. P. Raidt, Appellants, v. Mrs. J. Q. Stephens and St. John Levee & Drainage District of Missouri, a Corporation, Defendants, Ethel S. Edwards, Appellant

No. 35291

Supreme Court of Missouri

February 8, 1939

Appeal from New Madrid Circuit Court; Hon. Louis E. Schult Judge.

Reversed and remanded (with directions).

Sharp & Sharp for appellants.

(1) If a legacy, as here constitutes a lien on testator's estate or property or on land devised, the court, in an action or suit to enforce such charge or lien may direct a sale of property charged, to satisfy the legacy. 69 C. J., pp. 1159 1168, 1213, secs. 2474, 2486, 2553; Simpson v Corder, 170 S.W. 357. (2) A reversion or vested remainder may be sold before the expiration of the precedent estate for the satisfaction of legacies charged thereon and where the precedent estate is a life estate, the power of the court to order such sale is not affected by the fact that the life tenant is comparatively young and that on that account the revision will sell for little. 69 C. J., pp. 1202, 1214; 109 A. L. R. 725; Johnson Estate, 254 Pa. 71. (3) Plaintiff, Pearl Davis, having filed her motion to quash the execution in tax suit No. 6060 on the same grounds now set up in her petition, and the said motion to quash having been overruled and no appeal taken from such action is conclusively bound by that ruling. It is res judicata. Snodgrass v. Copple, 203 Mo. 489; Johnson v. Latta 84 Mo. 142; Cantwell v. Johnson, 236 Mo. 603; State ex rel. v. Buckner, 229 S.W. 393; Haughawout v. Royse, 122 Mo.App. 77; Poorman v. Mitchell, 48 Mo. 45; Roth Tool Co. v. Spring Co., 146 Mo.App. 29.

Ashby & Banta for respondents.

(1) The State's lien for taxes is superior to all other liens, even though they may be prior in time. Corrigan v. Bell, 73 Mo. 53: Keating v. Craig, 73 Mo. 507; Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 473; Springfield v. Randell, 240 S.W. 867; Little River Drain. Dist. v. Sheppard, 7 S.W.2d 1013, 320 Mo. 341; McAnally v. Little River Drain. Dist., 28 S.W.2d 650, 325 Mo. 348; Secs. 9937, 10764, 10765, 10766, R. S. 1929. (2) A tax judgment is valid as to defendants served therein, although process was not served on another defendant therein. Boyd v. Ellis, 107 Mo. 394, 18 S.W. 29; Nations v. Beard, 216 Mo.App. 33, 267 S.W. 19; Stillman v. Clards, 256 Mo. 297, 165 S.W. 1050.

OPINION

Douglas, J.

This is an action to quiet title. The land involved is the Northwest Quarter of the Northwest Quarter, the Southwest Quarter of the Northwest Quarter and the Northwest Quarter of the Southwest Quarter of Section 23, Township 24 North, Range 15 East in New Madrid County which includes a total of one hundred and twenty (120) acres. It comprises three forty-acre tracts lying along the western line of the section extending from north to south. We shall refer to these tracts as the north 40, the middle 40 and the south 40. The plaintiffs are Pearl Davis, her son and only bodily heir, J. R. Davis, Jr., and her mother, Sarah P. Raidt.

The parties are in agreement that Thomas G. Raidt is the common source of title. He died in 1921 owning the land in question and leaving a will and codicil by which he devised said land to his daughter Pearl Davis and her bodily heirs subject to an annual charge of $ 1 per acre on all the cleared land for the benefit of his wife, Sarah P. Raidt.

In 1924 Sarah P. Raidt brought suit against her daughter, Pearl Davis and her grandson, J. R. Davis, Jr., because of the nonpayment of the annual charge of $ 1 per acre as to the middle 40 and the south 40. The north 40 was not involved in this suit. Judgment was obtained and these two tracts were sold to satisfy the judgment. They were bought in by Sarah P. Raidt who conveyed them by warranty deed back to her daughter Pearl Davis.

Later, in 1925, suit was filed by the St. John Levee & Drainage District, hereinafter referred to as the "Drainage District" one of the defendants herein, against Pearl Davis as the owner of the three tracts for levee and drainage taxes for the years 1923 and 1924. Personal service was obtained on Pearl Davis. Neither Sarah P. Raidt nor J. R. Davis, Jr., were included as parties defendant. The suit went to judgment which was then permitted to lie dormant.

Some five years later a suit was filed against Pearl Davis by L. D. Marlowe, Collector of New Madrid County for delinquent State, school and county taxes for the years 1926, 1927 and 1928 on all three tracts. The Drainage District was also made a defendant. Service was had on the Drainage District but no service was had on Pearl Davis as to whom there was a non est return. Judgment was entered and the land sold under execution to Mrs. J. Q. Stephens, one of the defendants in the instant case who, on March 31, 1934, conveyed said land to Ethel S. Edwards, another defendant herein.

Finally, on September 18, 1934, execution was had on the judgment obtained in the Drainage District case, a sale was held and the three tracts bought in by the Drainage District.

In the case at bar the trial court found that the Drainage District was the owner of a life estate in all said land during the life of Pearl Davis; that Sarah P. Raidt was entitled to $ 1 per annum on the north 40, to begin with the annual payment for 1925 together with interest at six per cent; that J. R. Davis, Jr., was the owner of the remainder interest in all said land; that defendant Ethel S. Edwards was entitled to receive the sum of $ 862.26 for taxes paid by her less rents collected by her, said amount to constitute a lien on the interest of the Drainage District in said lands and if not paid within thirty days, then its interest to be vested in Ethel S. Edwards. The plaintiffs and defendant Ethel S. Edwards have appealed.

Plaintiffs contend that since Pearl Davis was not served in the suit brought by L. D. Marlowe, Collector of New Madrid County, the judgment in that suit in no way affected her interest in the land. This is undisputed. However, plaintiffs contend further that the execution sale under the judgment for State taxes in said suit extinguished the judgment lien of the Drainage District so that the sale under the latter judgment for levee and drainage taxes was a nullity. The contention is based on the argument that the State's lien for its taxes is superior to all other liens, even though they may be prior in time. In Little River Drainage District v. Sheppard, 320 Mo. 341, 7 S.W.2d 1013, we held that while the lien for State and county taxes shall be paramount, the lien of a drainage district for its taxes is not destroyed by a proceeding for the foreclosure of the lien for State and county taxes unless the Drainage District is made a party to the proceeding in order to give it an opportunity to pay the general taxes and thereby protect its lien. [See, also, McAnally v. Little River Drainage District, 325 Mo. 348, 28 S.W.2d 650; Drainage District No. 23 of New Madrid County v. Hetlage, 231 Mo.App. 355, 102 S.W.2d 702.]

Since the Drainage District was made a party to the suit by the collector, such ruling would be applicable here except for the fact that no service was obtained on Pearl Davis, the owner of the property. The suit by the collector was to foreclose the lien for State taxes on the interest which Pearl Davis had in the land, not on any interest which the Drainage District may have had because of its judgment lien. She was a necessary party to give the court jurisdiction of the case. Without her it had no jurisdiction to make any order in respect of the lien of the Drainage District. As she was not a party, the judgment was a nullity as was the sale under it and the lien of the Drainage District was in no way affected. A case on similar facts is Missouri Real Estate & Loan Co. v. Gibson et al., 282 Mo. 75, 220 S.W. 675. That was a suit on a special tax bill. The defendants were the owner of the property and the beneficiary under a deed of trust secured by the same property. The owner was not served but the beneficiary was. The question presented was whether the plaintiff, under such circumstances where the owner of the property was not served and therefore not a party, could enforce the lien of his special tax bill against the lien held by the beneficiary under the deed of trust. We held...