Decker v. Evans

• Citation: 221 S.W.2d 127
• Decision Date: 13 June 1949
• Docket Number: No. 41244.,41244.
• Parties: DECKER v. EVANS.
• Court: Missouri Supreme Court

221 S.W.2d 127

DECKER v. EVANS.

No. 41244.

Supreme Court of Missouri, Division No. 2.

June 13, 1949.

Appeal from St. Louis Circuit Court, Division No. 2, in Chancery; Harry F. Russell, Chancellor.

Suit in equity to cancel a sheriff's deed and for other relief by Dave Decker against Anne M. Evans. From the decree, the defendant appeals.

Affirmed.

Anne M. Evans, St. Louis, for appellant.

John C. Kappel, Jr., and Harry G. Neill, Jr., St. Louis, for respondent.

BOHLING, Commissioner.

Dave Decker instituted this suit in equity April 14, 1948, against Anne M. Evans to cancel a Sheriff's deed, to quiet title to the lot involved in plaintiff, upon plaintiff doing equity, and for general relief. Defendant answered, denying plaintiff's title and asked that title be decreed in her and that she be awarded $200 damages and general relief. The decree as for plaintiff, but conditioned upon plaintiff doing equity. Defendant appealed.

The land involved is known as lot "No. 26," rectangular in shape and fronting 35 feet on the south line of Sutherland avenue, with a depth of 119 feet 0¼ inch to a 15 foot alley; block 4, South Lindwood subdivision, in Block 5943, City of St. Louis, Missouri.

Defendant claims title to lot No. 26 under a Sheriff's deed issued pursuant to a sale for $103 on October 16, 1937, under a special execution, returnable to the December Term, 1937, of the circuit court of the City of St. Louis on a judgment in rem for $22.75 entered August 12, 1929, for a benefit assessment in a condemnation proceeding instituted September 19, 1923, being Cause 70545-B, City of St. Louis, plaintiff, vs. Adeline J. Holschbach et al., defendants. The Whitman Agricultural Company, a corporation, was named defendant therein. Defendant's deed bears date October 16, 1945, and was recorded October 22, 1945.

Plaintiff traces title from said Whitman Agricultural Company through warranty deeds, except as otherwise noted, as follows:

The Whitman Agricultural Company to James C. Keough, dated September 15, 1923, recorded December 27, 1923. The deed conveyed approximately 50 acres by metes and bounds, and recited that it was: "subject to the provisions of City Ordinance No. 32225 providing for the opening of Chippewa and Lansdowne avenues." Lot No. 26, here involved, was a small part of said 50 acres, but was not therein specifically described.

James C. Keough to The Gratland Realty Company, dated April 29, 1924, recorded August 4, 1924, conveying said 50 acres.

The Gratland Realty Company to Rescro Realty Company, dated August 20, 1926, recorded October 14, 1926, conveying lot No. 26, as such, and other lots therein described and excepting from the warranty: "general taxes for the year 1926 and thereafter, and special taxes and assessments which may have become a lien against the said property after the first day of August, 1926."

The Rescro Realty Company to Jesse and Laura Jobe, husband and wife, dated September 1, 1926, recorded November 30, 1926. The warranty clause excepted: "general taxes for the year 1924 and thereafter, and special taxes and assessments which may have become a lien against said property after the seventh day of July, 1924 * * *."

Laura Jobe secured a divorce from Jesse E. Jobe. On July 3, 1934, she purchased the interest of Jesse E. Jobe in lot No. 26 and other lots for $100 at a Sheriff's sale under an execution issued on said judgment and recorded said Sheriff's deed July 10, 1934.

Thereafter the title to lot No. 26 passed to Katherine Neville, then to Catherine Temme and then to Dave Decker, plaintiff herein, by quitclaim deeds dated, respectively, January 22, 1941 (recorded November 21, 1941), November 18, 1941 (recorded October 22, 1945), January 5, 1948 (recorded May 11, 1948). Katherine Neville and Catherine Temme acted as straw parties for plaintiff, who paid Laura Jobe $550 for lot No. 26 and another like lot.

The general taxes for 1930 through 1936 on lot No. 26 became delinquent. It was bid in for back taxes by the City of St. Louis in due course. On November 22, 1941, plaintiff redeemed it and other property he had purchased from Mrs. Jobe, paying a total of $266.27 to the City of which $128.83 was for the redemption of lot No. 26 and, at the same time, paying the taxes for 1937 to 1940, inclusive. Plaintiff thereafter paid the general taxes up to and including the 1945 taxes. When he went to pay the taxes for 1946 and 1947 he discovered they had been paid by defendant.

Commissioners were appointed in said condemnation proceeding, Cause No. 70545-B. They established a benefit district and assessed benefits, embracing lot No. 26. The record before us indicates no ordinance was passed creating a benefit district. Consult § 7484, R.S.1939, Mo.R.S.A. The judgment of August 12, 1929, was upon the report of said commissioners filed January 9, 1929, including item 2500 awarding the City of St. Louis $22.75 as a "first and special lien" upon lot No. 26, "property of The Gratland Realty Company, a corporation * * *."

An execution, returnable to the December Term, 1937, of court, was issued on said item 2500 and at the sale on October 16, 1937, defendant purchased. The Sheriff's deed was not delivered; and on October 12, 1945, eight years later, defendant filed a motion in said cause to require the Sheriff "to deliver to her a deed" to said lot No. 26. This motion was sustained; the Sheriff executed and delivered his deed on October 16, 1945, and defendant had it recorded on October 22, 1945.

Defendant contends the condemnation proceeding, Cause No. 70545-B, established the lien of the City for the benefit assessment against lot No. 26 and that said lot was also made subject thereto by the deeds in plaintiff's chain of title, stressing the Whitman Agricultural Company deed. She says that subsequent purchasers of lot No. 26 took with notice, citing § 3427, R.S.1939, Mo.R.S.A.; that the Sheriff's deed is proper evidence of her title, citing § 6355, Id.; consult §§ 1378, 15679-15681, Id. and that the judgment in Cause No. 70545-B carried the lien back to the institution of the suit (citing Perkinson v. Weber, 251 Mo. 186, 196, 157 S.W. 961, 964[4]).

The equities appear to be with plaintiff under the instant record.

The trial court found that plaintiff acquired title January 22, 1941; that plaintiff was a purchaser for value without notice, neither he nor anyone acting in his behalf having any knowledge, actual or constructive, that lot No. 26 had been sold under special execution to defendant or was in any way subject to the condemnation proceeding in Cause No. 70545-B. Laura Jobe sold because she was in need of funds and was unable to keep the general taxes paid. She had no knowledge of the condemnation proceeding. Plaintiff testified he checked the records in 1941 with respect to lot No. 26; that there were no taxes other than general taxes against the lot; that he found no deed of record indicating it had been sold, and that he had no knowledge whatever that it was in any way affected by said condemnation proceeding. He might have preferred to purchase the lot from the City rather than have redeemed it by taking care of the taxes down to date on November 22, 1941, had he known of defendant's claim.

The condemnation proceeding aforesaid, Cause No. 70545-B, was under Ordinance No. 32225, which affected only the property actually taken, it being an ordinance for the establishment, opening and widening of Chippewa street from Grand avenue to Watson road and Lansdowne avenue from Watson road to the City limits, and directed the City Counselor to institute proceedings for the appropriation of private property for that purpose.

The deed of the Whitman Agricultural Company was stressed by defendant at the trial. It conveyed 50 acres of land to James C. Keough, "subject to the provisions of City Ordinance Number 32225 providing for the opening of Chippewa and Lansdowne...