Dunnington v. Hudson

• Decision Date: 25 February 1909
• Citation: 116 S.W. 1083,217 Mo. 93
• Parties: DUNNINGTON v. HUDSON et al.
• Court: Missouri Supreme Court

116 S.W. 1083

217 Mo. 93

DUNNINGTON v. HUDSON et al.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

1. ADVERSE POSSESSION (§ 49½)—"PAYMENT OF TAXES" BY OWNER—WHAT CONSTITUTES.

Rev. St. 1899, § 4268 (Ann. St. 1906, p. 2342), provides that when real estate, the title to which shall have emanated from the government more than 10 years, is in the lawful possession of any person, and shall be claimed by another, and shall not have been in possession of the person claiming the same nor any one under whom he claims for 30 consecutive years and on which neither the person claiming the same nor those under which he claims have paid any taxes for all that period, the claimant shall, within one year from the date of his possession, sue to recover the same or be forever barred. Held, that the payment of costs and judgment for costs by a purchaser at a tax sale, by reason of his bid being equal to or in excess of the judgment and costs, is not a "payment of taxes" within the statute.

2. ADVERSE POSSESSION (§ 49½)—PAYMENT OF TAXES BY OWNER—RUNNING OF LIMITATIONS.

A purchaser at a tax sale may stop the running of limitations against him by subsequent payment of taxes on the premises.

3. ADVERSE POSSESSION (§ 79)—TAX DEEDS— "COLOR OF TITLE."

A tax deed, executed to a purchaser at a tax sale under a judgment in a suit against the original owner brought after the recording of a tax deed to another purchaser at a prior tax sale under a prior judgment for taxes in a suit against the original owner, is color of title within Rev. St. 1899, § 4268 (Ann. St. 1906, p. 2342), and one claiming under such deed and entering into possession and improving and claiming the property has lawful possession; "color of title" being any writing purporting to convey title to land by appropriate words of transfer and describing the land.

Woodson, J., dissenting.

Appeal from Circuit Court, Benton County.

Action by Rex W. Dunnington against Mary M. Hudson and others. From a judgment for defendants, plaintiff appeals. Affirmed.

H. P. Lay and Wm. T. Johnson, for appellant. W. S. Jackson, for respondents.

GRAVES, J.

By the first count of his petition the plaintiff sues in ejectment for the possession of 80 acres of land in Benton county, in said petition particularly described. By a second count he asks the court to declare title as provided by section 650, Rev. St. 1899 (Ann. St. 1906, p. 667). Defendants answer each count separately. Answering the first count, they first pleaded by way of general denial. Further answering said first count, they pleaded that they are in the possession of said premises and went into the possession thereof in 1897 under a deed from Annie M. Boeschen and N. B. Petts to Mary M. Hudson, and during all said time were in the lawful possession thereof, and then invoke by appropriate terms Rev. St. 1899, § 4268 (Ann. St. 1906, p. 2342), being the 30-year statute of limitations. The prayer was that the title be declared to be in Mary M. Hudson, and for all proper relief. The answer to the second count was in terms the same as that to the first count, and the prayer the same. By a third count in the answer the defendants pleaded that they had placed improvements on the premises in the sum of $200, and since the year 1896 had paid the taxes thereon, all of which had been done in good faith and under the belief that she was the rightful owner, and by prayer it is asked that, in the event the court should find for the plaintiff, she have judgment for such improvements and taxes. Reply was general denial.

The trial court in entering its judgment made the following findings of fact, which accord with the evidence: "Now on this day comes the parties plaintiff and defendant by their attorneys, and a jury having been waived by both parties plaintiff and defendant, this cause is now submitted to the court for final determination, and the court, after hearing all the evidence adduced by both the respective parties, and being fully advised in the premises, doth find: That Lucy S. Patrick is the common source of title. That she allowed the taxes to become delinquent upon the land in suit for the years 1869, to 1876, inclusive. That suit was brought by the collector of Benton county, in the name of the state, to enforce the state's lien therefor. That judgment was rendered for the amount of the taxes, and on the 5th day of May, 1881, the land was sold by the sheriff, under a special execution for said taxes and costs. That at the said sale Waldo P. Johnson became the purchaser of said land for the price and sum of $4, and a deed was executed conveying the said land to him. All the proceedings in this tax suit appear to be regular. The plaintiff claims title by mesne conveyances from the said Waldo P. Johnson. The defendant Mary M. Hudson claims title under a subsequent deed, executed by the sheriff of Benton county on a suit for delinquent taxes against the said Lucy S. Patrick, resulting from a sale in an action against the said Lucy S. Patrick, which suit was instituted several years after the deed to Waldo P. Johnson, plaintiff's grantor, was recorded. I find that neither the plaintiff nor his grantors paid any taxes on said land for more than 31 years prior to the institution of this suit. I find further that this land was uninclosed and unimproved, and not in the peaceable possession of any one until taken possession of by the defendant Mary M. Hudson in December, 1897, and that on that day the said Mary M. Hudson went into actual possession of the land under her tax deed, and has ever since, with her codefendants, been in the actual possession of said land, claiming to own the same. I find that about the year 1894-95 one Henry P. Lay, as an agent for the grantor of the plaintiff, who at that time claimed to own the land, went upon the land and spent several hours thereon for the purpose of inspecting the land for his principal, and, seeing that no trespass was committed thereon, that he, after going over the land, requested a neighbor to keep an eye on the land for the purpose of preventing trespass." The trial court found against the plaintiff upon both counts of the petition, and decreed the title to be in Mary M. Hudson, and adjudged the costs against plaintiff. After timely motion for new trial had proved unavailing, the plaintiff duly appealed, and hence the cause is here.

1. The first question presented is as to whether or not there has been a payment of taxes by the plaintiff or his grantors within 30 years next preceding this suit. Lucy S. Patrick is the common source of title. May 5, 1881, under a judgment against Lucy S. Patrick for taxes for the years 1869 to 1876, inclusive, the property was sold and bought in by Judge Waldo P. Johnson for $4; the costs in the tax proceeding aggregating more than $27. It appears that no taxes were ever paid by Lucy S. Patrick or her subsequent grantees from a date prior to 1869 up to this suit, unless the payment of the $4 at this tax sale should be so held. If that was a payment of taxes, then defendants have no standing, and, if not, they may have, subject, however, to other questions raised. Plaintiff cites us to several cases, of which White v. Shell, 84 Mo. 569, is a type, and contends that the court...