Evans v. Brussel

• Decision Date: 14 December 1959
• Docket Number: No. 47456,No. 2,47456,2
• Citation: 330 S.W.2d 788
• Parties: Anne M. EVANS, Appellant, v. Joseph BRUSSEL and Kreszentia Brussel, his wife, The Rengel-Weber Realty Co., H. P. Hahn and Bertha Greber, Clara W. Hahn, Last Board of Directors of the Greater St. Louis Corporation, a Corporation, and all the unknown heirs, grantees or successors in title, and the City of St. Louis, a Corporation, Respondents
• Court: Missouri Supreme Court

Page 788

330 S.W.2d 788

Anne M. EVANS, Appellant, v. Joseph BRUSSEL and Kreszentia Brussel, his wife, The Rengel-Weber Realty Co., H. P. Hahn and Bertha Greber, Clara W. Hahn, Last Board of Directors of the Greater St. Louis Corporation, a Corporation, and all the unknown heirs grantees or successors in title, and the City of St. Louis a Corporation, Respondents.

No. 47456.

Supreme Court of Missouri, Division No. 2.

Dec. 14, 1959.

Motion for Rehearing or to Transfer to Court en banc Denied

Jan. 11, 1960.

Anne M. Evans, St. Louis, pro se.

Thomas J. Neenan, City Counselor, Freeman L. Martin, Asst. City Counselor, St. Louis, for respondent.

STOCKARD, Commissioner.

In this suit to determine title to real estate located in the City of St. Louis the plaintiff has appealed from a judgment that she has no title or interest in the property. This is the second appeal in this proceeding. See Evans v. Brussel, Mo.Sup., 300 S.W.2d 442.

Plaintiff purchased the property herein involved on December 24, 1936, at a sheriff's sale held pursuant to a special execution issued upon a benefit judgment previously entered in condemnation suit to establish, open and widen a public highway. At that time general taxes assessed against the property for all years back to and including 1930 were delinquent and unpaid. The Jones-Munger Act, Laws of Missouri, 1933, pp. 425-449 (see now chapter 140, Title 10, RSMo 1949, V.A.M.S.) was then applicable to the City of St. Louis. The propety was advertised and offered for sale for delinquent taxes for the third time on November 1, 1937. It was purchased by the City of St. Louis and the collector issued certificate of purchase number 1482. Plaintiff does not challenge the validity of that sale because of alleged insufficiency of the purchase price. The plaintiff, nor anyone else, redeemed the property within the statutory period for redemption, and on September 1, 1941, the collector executed and delivered his deed to the City of St. Louis.

In her petition, which was not amended subsequent to the previous appeal, plaintiff alleged that she is the owner of the property in fee by virtue of the above referred to sheriff's deed, but that the defendants, other than the City of St. Louis, claim some interest therein, and the City of St. Louis 'may claim' that some title still remains in it by virtue of the above mentioned collector's deed based on certificate of purchase number 1482 which 'the Circuit Court of the City of St. Louis had already declared to be null and void because of the improper description of the property in the advertisement.' Plaintiff also alleged that the taxes for which the property was sold were returned delinquent in the names of Alfred and Kreszentia Brussel, but that at the time of the tax sale the sheriff's deed to her was of record and therefore the collector's deed shows that 'there was no duly made assessment, nor due notice of publication, nor notice that her property was about to be taken.' Plaintiff prayed that the court try, ascertain and determine the estates, title and interest of all the parties. The City of St. Louis filed an answer and also what it termed a cross-bill in which it alleged it was owner of the property by virtue of the collector's deed and that plaintiff and the other defendants had no interest therein. The City then prayed that the court try and determine the estates, title and interest of the parties and adjudge it to be the sole owner of the property. All other defendants defaulted.

The only evidence introduced by plaintiff at the trial consisted of a photograph of the property, a copy of the special execution issued on the benefit judgment upon which the sheriff's sale was based, a copy of the sheriff's deed to her, and pages 17, 18, 19 and part of page 45 of the transcript filed in this court in Evans v. City of St. Louis, 355 Mo. 790, 198 S.W.2d 9. The City of St. Louis introduced the collector's deed issued to it and some oral testimony from an employee of the collector's office to show that the general taxes from 1930 to the time of the sale were delinquent and unpaid. Plaintiff admitted that she paid no taxes on the propety at any time.

In Evans v. City of St. Louis, supra, plaintiff filed a suit in which count 13 of the petition pertained to the property in question and pages 17, 18 and 19 of the transcript contain the allegations of count 13. In that suit plaintiff did not challenge the validity of the collector's deed to the City of St. Louis except on the basis that at the time of the tax sale she personally did not owe any taxes on the property and no valid assessment of taxes had been made because the property was not assesssed in her name. The trial court dismissed count 13, and eight other counts, because plaintiff refused to amend her petition to comply with what is now Section 140.600 (all subsequent statutory references are to RSMo 1949, V.A.M.S.). Plaintiff appealed, but the appeal was dismissed by this court. In that case, although admitting there was no occasion to do so, the trial court made certain 'findings of law or fact,' one of which was that 'The sale of property in count * * * 13 is invalid as to the City of St. Louis, and certificate of title [purchase?] * * * 1482 [is] void--for bad description in advertisement in Daily Record.' This is the item on page 45 of the transcript in that case which plaintiff introduced in evidence in this case. However, neither the collector's publication of notice of sale for delinquent taxes upon which the sale of November 1, 1937, was based nor certificate of purchase 1482 was offered in evidence in this case.

The trial court entered judgment that the City of St. Louis is vested with fee simple title to the property, and that plaintiff failed to establish any estate, title or interest in the property.

Plaintiff's points relied on in her brief are lengthy, rambling and difficult to understand, but a careful study of them indicates that she makes the following contentions.

Plaintiff first contends that she was entitled to a decree vesting title in her by reason of the opinion of this court in the previous appeal in this case . That contention is without merit. In the previous appeal this court held no more than that her petition should not have been dismissed, but that after she had alleged that she had title to the property she was entitled to an adjudication of her existing title, and that if she had no title the trial court should so adjudge and decree. This the trial court did.

Plaintiff next asserts that the trial court erred in not finding that the special execution upon which the sheriff's sale to her was made was issued at the request of the City of St. Louis. Plaintiff states that 'This shows that the City Attorney knew the source of appellant's title when he filed the affidavits [that] he did not.' We fail to see how the failure to make this finding, assuming it was correct, could possibly have any bearing on the merits of this appeal.

The third point first deals with damages suffered by plaintiff, and in view of the judgment entered, damages to plaintiff cannot be an issue on this appeal. Plaintiff then asserts that the trial court erred in finding that she failed to establish any estate, title or interest in the property, but she assigns no reason for this contention except to say that the mandate in the previous appeal provided that the judgment dismissing her petition 'was reversed and the cause remanded with the direction that Sec. 527.150 applies to those actions to...