Dyer v. Harper

• Citation: 77 S.W.2d 106,336 Mo. 52
• Parties: Bedo Dyer and C. C. Dunham, Appellants, v. E. B. Harper, Roscoe Barkley, Hobart F. Miller and Big Creek Drainage District No. 2 of Johnson County
• Decision Date: 01 December 1934
• Court: United States State Supreme Court of Missouri

77 S.W.2d 106

336 Mo. 52

Bedo Dyer and C. C. Dunham, Appellants, v. E. B. Harper, Roscoe Barkley, Hobart F. Miller and Big Creek Drainage District No. 2 of Johnson County

Supreme Court of Missouri

December 1, 1934

Appeal from Saline Circuit Court; Hon. Robert M. Reynolds Judge.

Affirmed.

Jones & Wesner for appellants.

(1) The judgment of the court is against the law and the evidence and for the wrong party. Snitzer v. Pokus, 23 S.W.2d 155, 344 Mo. 386; Klebba v. Striempf, 23 S.W.2d 205 224 Mo.App. 193; Abernathy v. Hampe, 53 S.W.2d 1090; Little River Drainage Dist. v. Sheppard, 7 S.W.2d 1013; Sec. 10764, Chap. 64, Art. 1, R. S. 1929; Sec. 9747 Chap. 59, Art. 1, R. S. 1929; Sec. 9958, Chap. 59, Art. 9, R. S. 1929. (2) It was erroneous and an abuse of discretion for the court to permit respondents Harper and Barkley to file their said second amended answer over the timely objections and exceptions of appellants after the evidence had ceased and arguments of counsel had been made, said answer injected an absolutely different defense and issue than that upon which the cause had been tried, and was an absolute reversal and change of position on the part of respondents, Harper and Barkley. Joyce v. Growney, 154 Mo. 253, 55 S.W. 466; Neville v. D'Oench, 34 S.W.2d 507. (3) The judgment of the court is not supported by the pleadings of respondents, Harper and Barkley and is erroneous and for the wrong party when all the evidence in the case is viewed in the light of the pleadings. Little River Drainage Dist. v. Sheppard, 7 S.W.2d 1013.

W. E. Suddath for E. B. Harper and Roscoe Barkley.

(1) Court should be liberal in allowing amendments in furtherance of justice. Little River Drainage District v. Railroad, 236 Mo. 113; State ex rel. v. Reynolds, 277 Mo. 21; Neville v. D'Oench, 34 S.W.2d 507. (a) "Amendments are largely, but not entirely within the discretion of trial court. This discretion will not be interfered with unless it is obvious that there has been an abuse thereof by the court nisi." State ex rel. Bankers Life Co. v. Reynolds, 277 Mo. 21; Neville v. D'Oench, 34 S.W.2d 507. (b) And appellants waived any objection they might have to the amendment or order granting the amendment by pleading to the amended answer. Lee v. Battery & Supplies Co., 23 S.W.2d 57; Younger v. Evers, 64 S.W.2d 937. (2) One not made a party to tax suit or his grantee may redeem. Little River Drainage District v. Sheppard, 7 S.W.2d 1014; Geraldin v. Howard, 103 Mo. 46; Stafford v. Fizer, 82 Mo. 393; Allen v. McCabe, 93 Mo. 138; Williams v. Hudson, 93 Mo. 529; Myers v. Bassett, 84 Mo. 480; Secs. 9949, 9964, 9965, 9966 and 9967, R. S. 1929. (3) Plaintiffs, appellants, are only entitled to have refunded or repaid to them on redemption such sums as they actually expended. See authorities cited under Point 2 above.

OPINION

Tipton, J.

This case comes to the writer on reassignment. The appellants brought an action against the respondents, E. B. Harper, Roscoe Barkley, and the defendant Hobert F. Miller in the Circuit Court of Johnson County, Missouri, to determine and adjudge title to a certain tract of real estate located in that county. On change of venue the case was sent to Saline County and there the Big Creek Drainage District became a party defendant.

On November 9, 1929, the appellant, Bedo Dyer purchased this tract of land at a tax sale for general state, county and school taxes for the years 1925, 1926, 1927 and 1928 for the sum of $ 50. The amount of the judgment was $ 377.94. This appellant deeded an undivided one-half interest in this property to the appellant C. C. Dunham. Immediately following the sale of this land for state, county and school taxes, it again was sold to satisfy a judgment for benefit assessments and maintenance tax levied on behalf of the Big Creek Drainage District No. 2 for the same years, and the respondents E. B. Harper and Roscoe Barkley were the purchasers. On December 2, 1929, the sheriff of Johnson County executed deeds to both purchasers. The drainage district was not made a party to the suit to enforce the state, county and school taxes. The defendant, Hobart F. Miller, was the owner of the tract of land at the time the two judgments were obtained.

In the first amended answer of respondents, Harper and Barkley claimed to be the owners in fee to this land. On January 31, 1931, these respondents conveyed the interest they acquired by the sheriff's deed to the Big Creek Drainage District No. 2. On September 21, 1931, the drainage district filed its separate answer claiming to be the owner of the fee-simple title by reason of the conveyance to it from these respondents and on the same day Harper and Barkley filed an amended answer stating that they bought this land in their own names and held the title thereto, but never claimed to hold the beneficial title as against the drainage district. On these pleadings the case went to trial before the court. The answers of these respondents were offered in evidence. The evidence substantiated the fact that these respondents bought this land to protect the drainage district.

At the close of all the evidence and after the argument of counsel had been made, it is apparent from reading the record that the court had indicated that the deed from Harper and Barkley to the drainage district was a nullity. Over the objection of the appellants these respondents were permitted to file an amended answer. This answer set up the fact that these respondents purchased the tract of land at a sheriff's sale to satisfy a judgment in favor of the drainage district and that they took title in their own names, and that they had a right to redeem from the appellants. In their prayer they stated: "That in event the court shall determine that the above mentioned conveyance from these defendants to the defendant Big Creek Drainage District No. 2 is void and of no effect, then these defendants pray that the Court shall order, adjudge and decree that said conveyance be canceled upon such conditions as may be fixed by the court and also prayed that the right of redemption be decreed as against the appellants upon the payment of $ 50 or such sums as the Court shall decree."

The decree of the circuit court in substance was as follows: That the appellants, Bedo Dyer and C. C. Dunham, were the owners in fee simple of the tract of land in question, subject to be redeemed from them by the respondents, E. B. Harper and Roscoe Barkley, upon the payment of one hundred twenty-three dollars and eighty-one cents ($ 123.81) ($ 50 paid to sheriff at tax sale, $ 3 for deed, and $ 70.81 for taxes for the year 1930 paid by appellants); that defendant Hobart F. Miller has no title of any kind to the land; that the deed of respondents to the defendant the drainage district is void, and this deed shall be held for naught upon condition that respondents shall pay the drainage district the sum of $ 500.

From this decree the appellants, Bedo Dyer and Roscoe Barkley, have duly appealed to this court. Other pertinent facts will be stated in the course of this opinion.

I. The lien created by the judgment for state, county and school taxes was superior to the lien for drainage taxes. In the suit to enforce the collection of state, county and school taxes the Big Creek Drainage District No. 2 was not made party, and therefore its lien was not destroyed by a sale under such a judgment. At a sale under a judgment for drainage taxes, the purchaser would acquire the right to redeem in an action against the holder of the tax title, by making a proper tender of the amount due the holder of the tax title. [Little Drainage District v. Sheppard, 320 Mo. 341, 7 S.W.2d 1013.]

The appellants do not contend otherwise, but they do assert that no proper tender was made and, therefore, the decree was improper. In their brief they say: "About the only point material to the facts in the case at this time testified about orally was dispute between appellants and respondents as to whether or not respondents had tendered appellants the amount of $ 50 for their interest in the real estate in an attempt to prove, on the part of respondents, Harper and Barkley, steps toward making a tender in order to establish their claimed right of redemption. Appellants denied any such tender either from respondents or the drainage district. Respondents contended there was a tender."

We think it is immaterial that the offer to redeem be made prior to the filing of a petition or cross-petition. If such petition or cross-petition contains an offer to redeem that is sufficient.

Section 9966, Revised Statutes 1929, is as follows:

"No suit or action in any of the courts of this State, either at law or in equity, shall hereafter be maintained by any person or corporation, against any other person or corporation, for the determination of the title to, or for the recovery of, any lands which shall have been sold for taxes, or any interest in any such lands, or for the setting aside or cancellation of any tax deed or sale of land for taxes alleged to have been void, voidable or defective, unless such person or corporation so seeking to recover such lands, or some interest therein, or the setting aside of such tax deed or tax sale, shall in his petition offer to refund to the defendant therein, or to such other person or corporation, from whom and against whom such recovery is sought, in such action, all taxes paid by such defendant, or other persons, and his grantors, remote or immediate, or by those under whom he claims, together with interest thereon from the date of payment of such taxes to the date of the judgment in such action. No actual tender shall be required to be made by such plaintiff or other person seeking such recovery or cancellation of such...