Delta Realty Co. v. Hunter

• Decision Date: 10 June 1941
• Docket Number: 36699
• Citation: Delta Realty Co. v. Hunter, 152 S.W.2d 45, 347 Mo. 1108 (Mo. 1941)
• Parties: Delta Realty Company, Appellant, v. Lee Hunter
• Court: Missouri Supreme Court

152 S.W.2d 45

347 Mo. 1108

Delta Realty Company, Appellant, v. Lee Hunter

No. 36699

Supreme Court of Missouri

June 10, 1941

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

Affirmed.

Hal H. McHaney for appellant.

(1) The action was converted into an equitable action, and the rules governing equitable actions on appeal are applicable here. Rains v. Moulder, 90 S.W.2d 81. (2) If the findings and judgment of the trial court are not sustained by the evidence and the law, then this court will proceed to make its own findings and enter judgment as equity and justice may require. Cohran v. Pope, 252 Mo. 261, 158 S.W. 603; Wilson v. Wilson, 256 Mo. 541, 165 S.W. 999. (3) Service by publication is just as effective as though personal service were obtained. The only difference is that judgments obtained upon constructive service are subject to the filing of bills of review within the period provided for by statute Secs. 739, 741, R. S. 1929; Tooker v Leak, 146 Mo. 419, 48 S.W. 641; Cruzon v Stevens, 123 Mo. 337, 27 S.W. 557; Schmidt v. Niemeyer, 100 Mo. 207; Jones v. Driscoll, 94 Mo. 190; Payne v. Lott, 90 Mo. 676. (4) No bill of review has been filed in this case, nor would a bill of review lie. No good cause upon the merits was alleged by the defendant for the setting aside of the tax judgment. Defendant explicitly admitted the taxes sued for were due and that the owner had no defense to the tax suit. Secs. 1081, 1084, R. S. 1929; Osage Investment Co. v. Sigrist, 298 Mo. 139, 250 S.W. 39. (5) The sheriff's return which it attacked as premature was made upon a summons for Frances Smith and Smith, her husband, Drainage District No. 19 of New Madrid County of Missouri, a corporation. By the sheriff's return it appears that the writ was served upon R. L. Jones for Drainage District No. 19 of New Madrid County, Missouri, a corporation, on the 14th day of April, 1933. The writ is otherwise undated. There were no file marks upon the return to indicate when the same was filed in the office of the Circuit Clerk of New Madrid County, Missouri. The return contains the further recital "I further executed this writ by making a diligent search but failing to find Frances Smith and Smith, her husband in New Madrid County, Mo." There was no testimony offered in the trial of the case to establish when the sheriff's return in question was filed. In such state of proof, nothing appearing upon the sheriff's return indicating the contrary, it is presumed that the sheriff performed his duty, and that the return was not filed prior to the return day of the summons, namely, the third Monday in May, 1933. The burden of rebutting such presumption rested upon the party challenging the propriety of the sheriff's return. The defendant, Lee Hunter, not having impeached the return, is cast by the presumption attending the acts of public officials. 50 C. J., 571, sec. 281; Wells v. Wells, 270 Mo. 57, 213 S.W. 830; Eversmeyer v. Broyles, 280 Mo. 99, 216 S.W. 317; Elrod v. Carroll, 202 S.W. 4; Griffin v. Franklin, 224 Mo. 667, 123 S.W. 1092; Shelton v. Franklin, 224 Mo. 342, 123 S.W. 1084; DePaige v. Douglass, 234 Mo. 78, 136 S.W. 345. Furthermore, when a summons is issued for service upon two parties and the service is obtained upon one of the parties, the date thereof being shown by the return, and no date is shown as to the date of the return nor is the date of filing shown, it will be presumed that the single date appearing refers to the time of service on the person served, and not to the date of the return. 50 C. J., 565; Commonwealth v. Schmidt, 165 Ky. 351, 176 S.W. 1166. (6) There are present the necessary essentials to constitute equitable estoppel, namely: (a) A statement or act inconsistent with a claim afterwards asserted; (b) Action by the other party on the faith of such statement or act and (c) Injury to the other party resulting from allowing such party to contradict his statement or act. State ex rel. School District v. Haid, 328 Mo. 729, 41 S.W.2d 806; Grafeman Dairy Co. v. Northwestern Bank, 290 Mo. 311, 235 S.W. 435; Pollard v. Ward, 289 Mo. 275, 233 S.W. 16; Marley v. Norman's Land & Mfg. Co., 289 Mo. 221, 232 S.W. 704; DeLashmutt v. Teeter, 261 Mo. 412, 169 S.W. 34; Thompson v. Lindsey, 242 Mo. 53, 145 S.W. 472. (7) The above rule is applicable to judicial sales. Marley v. Norman Land & Mfg. Co., 289 Mo. 221, 232 S.W. 704. (8) This rule is particularly applicable where plaintiff will suffer special damage not compensible under the remedies provided by law. Tennent v. Union Central Life Ins. Co., 133 Mo. 345, 112 S.W. 761. (9) Had the defendant received the proceeds from the sale as demanded, such action would have unquestionably constituted ratification of the sale, and defendant would thereafter have been estopped to assert title to the lands in question. Where a demand was made for the payment of the surplus money, and such demand was not withdrawn before tender of such surplus money by the sheriff, the ratification is just as complete as though the surplus money had been paid by the sheriff. Stubblefield v. Husband, 341 Mo. 38, 106 S.W.2d 419; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 656; Milan v. Richmond, 280 Mo. 30, 217 S.W. 74; Lawson v. Cunningham, 275 Mo. 128, 204 S.W. 1105; Hector v. Mann, 225 Mo. 228, 124 S.W. 1109; Captaine v. Miss. Valley Trust Co., 177 S.W. 628; Allen v. Best, 227 Mo.App. 851, 58 S.W.2d 810. (10) This case is analagous to the situation arising where the real owner of the lands, though not sued, permits the lands to be sold for taxes for the purpose of avoiding part of them, and where he bids at the sheriff's sale, but where the lands are sold to another. It has been held in Missouri that by such bidding the sale was ratified by the owner, and he could not thereafter dispute the title passing at the sheriff's sale. Spence v. Renfro, 179 Mo. 417, 78 S.W. 597. (11) Plaintiff is entitled to recover for the purchase price paid at the tax sale and the value of the improvements placed upon the land in question. The true measure of plaintiff's recovery as to improvements is the reasonable value of the improvements to the land at the time of the trial rather than the actual cost of the improvements. Sutton v. Anderson, 31 S.W.2d 1026; Rains v. Moulder, 90 S.W.2d 81; Dawkins v. Griffin, 195 Mo. 530, 94 S.W. 525. (12) The court admitted incompetent evidence as to cost of improvements and as to exchanging rents for clearing. Sutton v. Anderson, 31 S.W.2d 1026. (13) After defendant had closed his case in chief, and after plaintiff had completed offering testimony in rebuttal, the defendant was permitted by the court, over the objections of the plaintiff, to offer some evidence though quiet indefinite as to rents and profits. Such testimony was clearly in error and should be disregarded on appeal. Feary v. Metropolitan St. Ry. Co., 162 Mo. 75, 62 S.W. 452; Jackson v. Grand Ave. Ry. Co., 24 S.W. 192. (14) Under no circumstances was defendant entitled to recover for rent except such rent as accrued from time plaintiff had notice of defendant's claim of title which was the date of defendant's answer, December 13, 1937. Sec. 1377, R. S. 1929.

Merrill Spitler for respondent.

(1) Although the court hears an equity case de novo on the merits, it is the rule to defer to the findings of the chancellor, where they are not against the weight of the evidence, especially where the witnesses personally appeared before him and their credibility is involved. Stubblefield v. Husband, 106 S.W.2d 423 and cases cited. (2) Service by order of publication on a resident of the state gives the court no jurisdiction and the title is void. Harness v. Cravens, 126 Mo. 233. (3) A writ of summons prematurely returned furnishes no basis for an order of publication, and the judgment rendered thereon is void. Himmelberger-Harrison Lbr. Co. v. McCabe, 220 Mo. 154; Williams v. Sands, 251 Mo. 161; State ex rel. Brown v. Stewart, 281 S.W. 768. (4) The trial court having the opportunity to observe the witnesses before him has a right to pass upon the weight of the evidence, in equity cases.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Plaintiff, a corporation, filed this suit in the Circuit Court of New Madrid County, April 7, 1937, to determine title to land in that county, viz., Section 7, Township 23, Range 13 East. Plaintiff was in possession. Defendant, by his amended answer denied plaintiff's ownership, and by what is denominated "further answer and cross bill," (generally called cross-bill in the record and briefs) claimed ownership in himself, alleged the source of his title, the title by which plaintiff claimed, asked determination of the title and further pleaded a cause of action in ejectment. Plaintiff filed a reply denying the affirmative allegations of defendant's cross-bill, except as to the source of plaintiff's title, pleading acts of estoppel as against defendant, and averring that if its title was not good it was entitled to reimbursement for improvements made on the land. Defendant joined issue with this reply by what is denominated a replication. The case was tried to the court as one in equity. The court found and adjudged that defendant was the owner of the land and allowed plaintiff for improvements after deducting a named amount for rent and waste. Plaintiff appealed.

The pleadings are long. We shall summarize them, using the nomenclature the parties used.

The petition is somewhat broader than the usual formal petition to determine title. It asks the court to determine and adjudge the estate title and interest of the parties, whether legal or equitable, certain or uncertain, present or reversionary and to "finally determine all the rights claims, interests, liens and demands...