Gee v. Bullock

• Decision Date: 08 September 1942
• Docket Number: 38026
• Citation: 164 S.W.2d 281,349 Mo. 1154
• Parties: Everett B. Gee and the E. B. Gee Land Company, a Corporation, Appellants, v. George Bullock, Allan G. Morrison, Z. F. Campbell, Robt. A. McCord, Roger A. Bailey and Glennye Blakefield
• Court: Missouri Supreme Court

164 S.W.2d 281

349 Mo. 1154

Everett B. Gee and the E. B. Gee Land Company, a Corporation, Appellants, v. George Bullock, Allan G. Morrison, Z. F. Campbell, Robt. A. McCord, Roger A. Bailey and Glennye Blakefield

No. 38026

Supreme Court of Missouri

September 8, 1942

Appeal from Scott Circuit Court; Hon. J. C. McDowell Judge.

Affirmed.

C E. Rendlen, F. D. Wilkins, C. M. Buck and Edward F Sharp for appellants.

(1) The tax deed under which respondents claim title is void. The known owner of the land was not made a party to the tax suit. (a) This court has recently reaffirmed the doctrine always held that unless the real and known owner of property is made a party defendant to the tax suit, the court acquires no jurisdiction and the judgment is absolutely void and does not preclude or cut lien or mortgage holders even if they are parties to the tax suit. Davis v. Stephens, 124 S.W.2d 1132; Mo. Real Estate Loan Co. v. Gibson, 282 Mo. 75. (b) The tax deeds under which defendants claim only purported to sell "all the right, title and interest" of the defendants named in tax suits, and since they had no interest, such deeds were ineffective to pass any title whatsoever. Rothenberger v. Garrett, 224 Mo. 198; Blevins v. Smith, 104 Mo. l. c. 592; Wilson v. Fisher, 172 Mo. l. c. 18; Farrar v Patton, 20 Mo. 81; Lewis v. West, 23 Mo.App. l c. 509; McCamant v. Patterson, 39 Mo. l. c. 111; Franklin v. Cunningham, 187 Mo. l. c. 195; Ridings v. Hamilton Savs. Bank, 219 S.W. 587; Henrick v. Patrick, 7 S.Ct. l. c. 157; Mo. Real Estate & Loan Co. v. Gibson, 220 S.W. 675, headnote 1. (c) The purchaser of land at a tax sale is a mere volunteer and only acquires such title as the defendants in the tax suit had, provided the actual owner had been made a party in the tax suit and the court had jurisdiction of the res. Milner v. Shipley, 94 Mo. 106; Graves v. Ewart, 99 Mo. 13; Falvery v. Hicks, 315 Mo. l. c. 451; Smith v. Kiene, 231 Mo. l. c. 227; Rothenberger v. Garrett, 224 Mo. l. c. 198. (2) The tax statute (Sec. 9953, R. S. 1929) directed that all tax suits be "against the owner, if known, and if not known then against the last owner of record," etc. Where one holds title or interest which is not required to be placed of record, as the assignee of a note secured by deed of trust and they are not made parties to the tax suit, their interests are not bound by the tax suit and judgment and their beneficial interest in the real estate was not divested by the sale under such judgment and such does not foreclose the deed of trust securing their debt. Likewise, where the purchaser at such a tax sale has knowledge or such information as would place a prudent man on inquiry as to the fact of an outstanding title or interest, not of record, and the holder or owner of which is not made a party in the tax suit, such outstanding interest is not foreclosed or cut out or destroyed by the tax sale. Williams v. Hudson, 93 Mo. 527; Bell v. Ham, 173 S.W. 744, 188 Mo.App. 71; Adams v. Gossom, 228 Mo. 566; Perkinson v. Meredith, 158 Mo. 457; Gay v. Cantwell, 191 Mo. 898. (a) The holder of a deed of trust on real estate is a necessary party to a suit for taxes, and if not made a party, his interests are not affected by the judgment rendered in the tax suit and he has the right to redeem from the tax sale. Bullock v. Gee, 148 S.W.2d 565; Stafford v. Fizer, 82 Mo. l. c. 399; Allen v. McCabe, 93 Mo. l. c. 144; Boatmen's Savs. Bank v. Grewe, 84 Mo. 477; Giraldin v. Howard, 103 Mo. l. c. 45; Landau v. Cattrill, 159 Mo. 315; State ex rel. v. Reynolds, 213 S.W. l. c. 69; Barrie v. Whitton, 13 S.W.2d 47; Hider v. Sharp, 257 S.W. 112; Little River Drain. Dist. v. Sheppard, 7 S.W.2d 1014; Mo. Real Estate & Loan Co. v. Gibson, 220 S.W. 674, 282 Mo. 75; Bell v. Ham, 188 Mo.App. 71, 173 S.W. 744; Williams v. Hudson, 93 Mo. 527; Taff v. Tallman, 277 Mo. 163, 209 S.W. 868; Hilton v. Smith, 134 Mo. 507; Zweigart v. Reed, 221 Mo. 45; Keaton v. Jorndt, 168 S.W. l. c. 737; Stuart v. Ramsey, 196 Mo. l. c. 417; Construction Co. v. Ice Rink Co., 242 Mo. l. c. 253; Adams v. Gossom, 228 Mo. 566. (b) Proceedings for the collection of taxes under which respondents claim were governed by Sections 9952 and 9953, R. S. 1929, including service by publication against unknown and nonresident defendants, and makes the general laws as to practice and proceedings in civil actions applicable to such tax suits. Secs. 9952, 9953, R. S. 1929. (3) Neither of the Himmelberger Companies were made parties to the tax suits, nor were the assignees or holders through Hobbs made parties. (a) Defendants in this case cannot challenge the legality of the transactions under which Allan G. Morrison acquired title for the reason that their claim, if any they have, rests solely upon that transaction. In any event, the law would set up a vendor's lien in favor of the owner of the notes because the recorded deed of trust securing them show they were executed for the purchase price. Gill v. Clark, 54 Mo. 415; Orrick v. Durham, 79 Mo. 174; Hockaday v. Lawther, 17 Mo.App. 636; Belcher v. Haddix, 44 S.W.2d 177; Hunter v. Hunter, 39 S.W.2d 359. (b) Since respondents, if they acquired anything at all at the tax sale, could only have acquired the interest of Morrison, he is estopped from questioning the validity of the lien of the notes given for the purchase price unless he first surrenders the possession of the land. Crum v. Wright, 97 Mo. 13; Smith v. Busby, 15 Mo. 383; Wright v. Lewis, 19 S.W.2d 289; Jamison v. Van Auken, 210 S.W. 419; Wought v. Williams, 119 S.W.2d l. c. 227. (4) There is no law in this State requiring that an assignment of a note secured by a deed of trust be placed of record and, absent such requirement, recording would not be constructive notice of such assignment. Holmes v. Doe Run Lead Co., 223 S.W. 772; Brown v. Baldwin, 121 Mo. 106; Mason v. Black, 87 Mo. l. c. 342; Speck v. Riggin, 40 Mo. 405; Vaughn v. Tracey, 22 Mo. 415; Sec. 3040, R. S. 1929; Heintz v. Moore, 346 Mo. 226, 151 S.W. 449. (a) The assignment of a promissory note secured by a deed of trust carries with it control of the deed of trust and thereafter all control of same was lost by the original payee. Joerdens v. Schrimpf, 77 Mo. 383; Hagerman v. Sutton, 91 Mo. 519; George v. Summerville, 153 Mo. 7; King v. King, 182 S.W. 1047; Lee v. Clarke, 89 Mo. 553; State Bank of St. Louis v. Frame, 112 Mo. 502; Morrison v. Roehl, 215 Mo. 545; Cooper v. Newell, 263 Mo. 190, 172 S.W. 526; Hellweg v. Bush, 74 S.W.2d 89. (5) Assignee of a note given for the purchase price of land for which a general warranty deed had been made by the vendor may enforce a vendor's lien against the land in the hand of the vendee or his assignees the same as the vendor himself could. Dixon v. Fisher, 137 Mo. l. c. 358. (a) Where the note and mortgage given for the purchase price of land are both declared void by the court, the court gives the holder of the note a vendor's lien. Barnhart v. Little, 185 S.W. 174; Furnish v. Pryer, 282 S.W. 546. (6) Darby A. Day Investment Company had title to this land by unrecorded and lost deed at time tax suit was brought. (a) The plaintiff should have been permitted to make proof of lost deed from Allan G. Morrison to Darby Day Investment Company. The offer of proof included every element necessary for the admission of secondary evidence of the lost deed. It was also shown that the deed was beyond the jurisdiction of the court. Montgomery v. Dormer, 181 Mo. 5, 79 S.W. 913; 2 Jones, Commentaries on Evidence (2 Ed.), secs. 812, 828, pp. 1485, 1514, 1515; State v. Meyers, 259 Mo. 306; Brown v. Wood, 19 Mo. 475; Radford v. Horton, 207 Mo.App. 601; L. R. A. 1917D (M), 532; Atwell v. Lynch, 39 Mo. 519; 22 C. J., p. 1042; 22 C. J., p. 1043, sec. 1341; Brooks v. Roberts, 281 Mo. l. c. 561. (b) Darby Day Investment Company were in actual possession at and prior to date tax suits were brought. Parties dealing in real estate are charged with notice of title and rights of the party in possession of premises at the time of purchasing or other transactions. Ballenger v. Windes, 99 S.W.2d 158; Missouri P. & L. Co. v. Thomas, 102 S.W.2d 564; Langford v. Welton, 48 S.W.2d 860. (7) The certified copies of the records of the examinations made of insurance companies by the proper authorities of Illinois and Ohio were properly in evidence and should have been considered by the court. They show that Hobbs, payee in the two notes involved herein, secured by the deeds of trust herein, did not have possession, control or ownership of them when the tax suits were filed or determined, and upon which tax suits respondents' title rests. Where the law requires a thing to be done the record of doing of such act duly filed and recorded in accordance with such law is competent evidence of the existence of the facts stated therein. Paving Co. v. O'Brien, 128 Mo.App. l. c. 284; 53 C. J., pp. 604-5. (8) The period during which the injunction was kept in force by Bullock against the trustee from foreclosing the $ 294,000 deed of trust (being over two years) cannot be deemed any portion of time in computing the Statute of Limitations against claims upon such deed of trust. Sec. 1029, R. S. 1939; Cordia v. Matthes, 338 Mo. 308, 90 S.W.2d 101. (a) In addition, the courts hold that a suit brought under the provisions of a suit to quiet title interrupts the running of the Statute of Limitations, even so far as adverse possession is concerned. Matthews v. Karnes, 320 Mo. 962, 9 S.W.2d 628. (b) The opinion in the former suit of Bullock v. Gee was handed down December 11, 1940. Rehearing denied March 13, 1941, and the present suit was filed within three years from that date and is in effect a bill of review and in compliance with the statute which provides that judgments in quiet title suits...