Donnell v. Wright

• Decision Date: 23 December 1898
• Citation: 49 S.W. 874,147 Mo. 639
• Court: Missouri Supreme Court
• Parties: DONNELL v. WRIGHT et al.<SMALL><SUP>1</SUP></SMALL>

49 S.W. 874

147 Mo. 639

DONNELL v. WRIGHT et al.¹

Supreme Court of Missouri, Division No. 1.

December 23, 1898.

JUDGMENT — RES JUDICATA — OBJECTION TO RULING — WAIVER.

1. Where, in a previous suit, the validity of a tax deed was determined, but one of the issues on which its invalidity was predicated was not passed on, such remaining issue cannot be urged in a subsequent suit attacking the validity of the deed, since res judicata applies not only to points on which the court announces its judgment, but to every point involved in the litigation.

2. A party, by offering evidence on an issue submitted to the jury over his objection, does not waive his objection thereto.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action in ejectment by M. S. C. Donnell against William P. Wright and others. There was a judgment for defendants, and plaintiff appeals. Reversed.

R. B. Garnett, for appellant. R. J. Ingraham and C. O. Tichenor, for respondents.

BRACE, P. J.

This is an action in ejectment to recover possession of part of a lot in block 31 in McGee's addition to the city of Kansas. The petition is in common form; the answer, a general denial. The verdict and judgment were for the defendants, and the plaintiff appeals.

The defendant Robert Taubman is the landlord, and the other defendants his tenants in possession. The plaintiff claims title under a city tax deed, duly executed, acknowledged, and recorded, and dated January 13, 1885. The defendants claim title under a quitclaim deed from Mary K. Lynch to Taubman, dated January 22, 1891. Previous to this deed, Taubman had, by general warranty deed, dated June 24, 1886, conveyed the premises to Mrs. Lynch, and received a part of the purchase money. But being unable to consummate the trade, by reason of plaintiff's outstanding tax title, a suit was instituted in the Jackson circuit court, in the name of Mrs. Lynch, against the plaintiff, to cancel and annul the tax deed as a cloud upon her title. This suit was instituted, maintained, and prosecuted by the defendant Taubman, the gravamen of the cause of action, as stated in the petition, being as follows: "That, notwithstanding the recitals in said tax deed, plaintiff alleges the fact to be that only a part of any of the alleged taxes for the year 1882 were of any validity; * * * that said pretended tax sale, if made, was made for such illegal taxes, with interest thereon; that said pretended sale was not advertised, nor made according to, but in disregard of, the provisions of the charter of the city of Kansas, Missouri; that the pretended tax sale for the year 1882, by said city, began on the 6th day of November, 1882, the first Monday of said month; that no notice thereof had been published in any newspaper published in said city, nor was any written notice thereof posted up by the city collector in the four most public places in the city of Kansas for at least three weeks before the day of sale, nor had the city collector, on or before the 8th day of December, 1882, filed in the office of the city auditor a copy of any such written notice, with his certificate indorsed thereon, setting forth that any such notice had been posted up in the four most public places in the city of Kansas, at least three weeks before the day of sale, as required by law, if any such notice had been given; that the city collector did not at his office, on the first Monday in November, 1882, at the hour of 10 o'clock in the forenoon, offer for sale each tract or parcel of real property on which the taxes, interest, and costs, or special assessments had not been paid, and did not continue the sale from day to day up to December 8th, 1882, between the hours of 10 o'clock in the forenoon and 5 o'clock in the afternoon, as long as there were bidders, or until the taxes were all paid; that at such sale, on the 8th day of December, 1882, the bidders in attendance thereat confederated with each other not to bid against each other for the property there offered for sale, and the tract or lot aforesaid was bid off by defendant in pursuance and at the time of such understanding, and acting thereon." Issue was joined upon these allegations of the petition; the issue found for Mrs. Lynch in the circuit court; and a judgment rendered setting aside the tax deed, from which Donnell appealed to this court, where the judgment was reversed at the April term, 1891. Lynch v. Donnell, 104 Mo. 519, 15 S. W. 927. Afterwards, on the 10th of January, 1895, this suit was instituted. On the trial for the purpose of invalidating the tax deed, the defendants were permitted to introduce in evidence the bill of exceptions in the case of Lynch v. Donnell, and other evidence tending to prove the last allegation in the petition in that case, and that issue was submitted to the jury on the following instruction for the defendants: "(1) You are instructed that if you believe from the evidence that the bidders at the sale, on the day when the land in controversy was sold for taxes, had an agreement or understanding with each other to take turns in bidding, and not to bid against each other, and that they acted under and carried out such agreement as to the property sued for, then your verdict must be for the defendants," — to all of which the plaintiff persistently objected and...