Fleming v. Wilson
| Decision Date | 28 March 1919 |
| Citation | 211 S.W. 73,277 Mo. 571 |
| Parties | MARK T. FLEMING v. NETTIE WILSON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. Sterling H. McCarty Judge.
Affirmed.
Ward & Reeves for appellant.
(1) The court erred in excluding the testimony offered by the defendant. (a) One of the defendants in the tax judgment deed under whom the defendant claims was Eugene Cropper mortgagee. In plaintiff's deed he assumed this mortgage. The defendant offered this mortgage to show the proper parties defendant were made defendants in the tax suit McIlravy and Eugene Cropper, mortgagee. The court sustained the objection. (b) The court sustained the objection on this line of testimony to-wit: That the land was of little value when bought in at the tax sale and it had enhanced in value 300 per cent and that this enhancement in value was by special assessment for levee and drainage districts and that this had been paid by the defendant and that the plaintiff had abandoned the property and waited until it had enhanced in value by the expenditures of the defendant. This was competent testimony. Toler v. Edwards, 249 Mo. 163; Shea v. Shea, 154 Mo. 607; Evans v. Snyder, 64 Mo. 518; Hudson v. Cahoon, 193 Mo. 563. (2) The court erred in giving peremptory instruction to the jury to find for the plaintiff. (a) The sheriff's deed under which the defendant holds conveying the title of McIlravy and Agnes Cropper, mortgagee, was good, and the tax judgment presumed to be against the owners of the land and conveyed the title to the grantees and put the burden on plaintiff to show that McIlravy had prior thereto conveyed the title. Sec. 6346, R. S. 1909; Sec. 11501, R. S. 1909; Einstine v. Holliday-Klotz Lbr. Co., 132 Mo.App. 82. (b) The title being in McIlravy, with Eugene Cropper, mortgagee, and they being sued for taxes, the plaintiff has the burden to show that he obtained the deed from them prior to the date of the judgment in the tax suit February 14, 1895. The deed he offers to show that fact shows on its face that it was signed and acknowledged June 24, 1895, four months after the judgment lien for taxes on said land; it then became a question of fact for the jury whether the deed was made before or after the tax judgment and peremptory instruction to find for the plaintiff in the face of this record is erroneous. 38 Cyc. 1524. Young v. Stephens, 66 Mo.App. 226; Carp v. Insurance Co., 104 Mo.App. 518; Primm v. Haren, 27 Mo. 205; Chapman v. Ry. Co., 146 Mo. 592; Manse v. McGuire 52 Mo.App. 136. (c) Laches and abandonment apply to a law suit such as ejectment, but if held to apply only to an equitable title, then plaintiff only had an equitable title under the swamp land law unless he had a patent. Mosher v. Bacon, 229 Mo. 349; Nall v. Conover, 223 Mo. 490; Russ v. Sims, 261 Mo. 52; Phillips v. Trust Co., 214 Mo. 663. (3) The tax sale and the deed thereunder carried title. (a) The tax deed took the title of McIlravy and the mortgagee, Cropper, and the plaintiff's deed not being acknowledged until June 24, 1895, he could not claim thereunder against the sale under the tax judgment February 14, 1895. Sugg v. Duncan, 238 Mo. 422; Harrison Machine Works v. Bowers, 200 Mo. 219; Sec. 11499 R. S. 1909; Schnitger v. Rankin, 192 Mo. 41. (b) But if it be conceded that there be error in the acknowledgment of the deed which stated that it was June 24, 1895 (which we deny), then under the statutory presumption disputed evidence to the different inferences that could be drawn from the deed would certainly make it at least a question of fact for the jury. Sec. 6346, R. S. 1909; Sec. 11501, R. S. 1909; Einstine v. Holliday-Klotz Lbr. Co., 132 Mo.App. 82; Primm p. Haren, 27 Mo. 205; 38 Cyc. 1524; Young v. Stephens, 66 Mo.App. 226; Carp v. Ins. Co., 104 Mo.App. 518; Chapman v. Ry., 145 Mo. 492; Manse v. McGuire, 52 Mo.App. 136. (c) If the tax deed was not good then the plaintiff's conduct shows abandonment, laches and estoppel and precludes a recovery. Ball v. Woolfolk, 175 Mo. 278; Hudson v. Wright, 204 Mo. 412; Nobles v. Cates, 230 Mo. 189; Martin v. Kitchen, 195 Mo. 477; Clyburn v. McLaughlin, 106 Mo. 521; Shea v. Shea, 154 Mo. 604; Toler v. Edwards, 249 Mo. 152; Hatch v. St. Joe, 68 Mich. 240. (d) If the party claiming to have the equitable title to the land is out of possession his equitable rights will be barred if he fails to take steps within a reasonable time to establish it unless he can show hinderance or impediment caused by the fraud or concealment of the other party, and the court will take into consideration several things, among them the following: Increase in the value of the land, unreasonable delay, loss of testimony, payments of taxes, etc. 32 Cyc. 1345; Hall v. Law, 102 U.S. 461; United States v. Moore, 12 Howard (U.S.), 209; Special v. Hemrice, 120 U.S. 349; Underwood v. Dugan, 24 F. 74; Harkness v. Underhill, 1 Black (U.S.), 315; Taylor v. Whitney, 56 Minn. 386; Comer v. Comer, 19 Ill. 170; Murphy v. Blair, 12 Ind. 184; Severns v. Hill, 6 B. Mon. (Ky.) 482; Allen v. Allen, 47 Mich. 74; Hendrickson v. Hendrickson, 42 N.J.Eq. 657; Weis v. Bethel, 8 Ore. 552; McGrew v. Foster, 113 Pa. 642; Hughson v. Manderville, 4 Desaus (S. Car.), 87; Hines v. Thorn, 57 Tex. 98. (4) Plaintiff contends that because the land was wild timber land the doctrine of laches and estoppel does not apply. With nothing more than that fact and the mere payment of the ordinary taxes, that statement of the law is correct; but when the following things are considered then the equitable defense of abandonment, laches and estoppel apply, to-wit: (a) Plaintiff seeks to quiet an equitable title; (b) the defendant in addition to paying the ordinary tax, has paid the betterment for building the levee to keep off the overflow; (c) and in addition the defendant has paid the assessed benefits of the drainage district to drain the land; (d) the land by reason of these facts has increased from $ 1.25 to $ 30 an acre; (e) the defendant owns the land from the grantees in sheriff's deed; (f) the deed plaintiff holds under is so contradictory as to its dates that the court might well find that the plaintiff lost his land by the tax sale, since the deed was acknowledged after the judgment became a lien on the land; (g) the date when the deed was executed could have been shown if the suit had been timely brought, but the notary public is gone, the man Denham is dead or gone, McIlravy is gone and cannot be found, and plaintiff's sister, who knew of this matter, is dead; (h) plaintiff bought the land subject to the taxes, which were a judgment lien at the time; (i) plaintiff bought the land subject to the mortgage and the mortgagee's interest was secured in the tax sale; (j) plaintiff waited twenty or twenty-five years until all the witnesses are dead or gone, deed lost, great amount expended for improvements on the land and its value increased 3000 per cent. These things constitute laches.
Duncan & Brewer for respondent.
(1) As the plaintiff's deed from McIlravy was made before the suit for taxes was filed and as this deed was on record before the sale for taxes, the tax sale was void and the purchaser at the tax sale acquired no title to the land in question by the tax deed and as the defendant deraigns her title from said tax sale, the defendant has no title. R. S. 1889, sec. 9303; Sugg v. Duncan, 238 Mo. 425. (2) As the plaintiff claims under a legal title the doctrine of laches does not apply. The doctrine of laches is only applied to defeat a claim for some equitable relief. It is no bar to a claim made under a legal title. Chilton v. Nickery, 261 Mo. 243. (3) As the land in question is wild timber land and not in the actual possession of anyone and uncultivated, the doctrine of laches or estoppel does not apply. Russ v. Sims, 261 Mo. 55.
I. Plaintiff sues to quiet the title to a certain eighty acres of unimproved timber land in Pemiscot County, Missouri, alleging that defendant claims some right, title, estate or interest adverse to him.
The answer was a general denial, coupled with an allegation of title in defendant, and a plea of abandonment, estoppel and laches on the part of plaintiff.
Plaintiff's claim of title dates from a patent to the State of Missouri, under an act of Congress, approved September 28, 1850, followed by a conveyance to Pemiscot County by the State of Missouri. The next link is a patent from Pemiscot County to Alexander Barnes, and then follows a devise by said Barnes to his wife Agnes, a deed from Agnes Barnes (Cropper) and her husband to H. G. McIlravy, from whom Plaintiff Fleming purchased. This latter deed bears date of June 24, 1890, but was not filed for record until the nineteenth day of March, 1895, five years after plaintiff purchased the land.
Defendant Nettie Wilson claims title in this way: In 1889 H. G. McIlravy mortgaged the land to one Agnes Cropper, and on September 3, 1895, the land was sold for taxes to R. F. Michie and R. B. West. Thereafter West sold his interest to William Hunter, and on September 4, 1897, R. F. Michie purchased the interest of William Hunter. Later said Michie died and left defendant, Nettie Wilson, his widow, and she, electing to take a child's part, this eighty acres of land was set apart to her.
The testimony of Plaintiff Fleming shows that he led a roving life, going from Illinois to Missouri, thence to Arkansas Texas and Alaska, but finally locating in Oregon in 1901, where he has lived until the present time; that he bought the land in controversy on June 24, 1890, from H. G. McIlravy for one thousand dollars, and assumed a mortgage of about two hundred and fifty dollars; that later (about 1892) he...
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