Gilliam v. Gohn

Decision Date10 June 1957
Docket NumberNo. 45827,No. 2,45827,2
Citation303 S.W.2d 101
PartiesGeorge S. GILLIAM, Leaner Gilliam Etier, Ethel Gilliam Latham, Audie Gilliam Sanders, Edgar C. Gilliam, Dovey Gilliam Maier, Leet W. Gilliam, Emma Gilliam Gaither, Jewell Gilliam Jackson, Kennie Gilliam Lindsey, W. Dean Cautrell and Hershel L. Gilliam, Appellants, v. Gretchen Frommel GOHN and Frank Newberry, Respondents
CourtMissouri Supreme Court

Turner M. King and Carloss Wadlington, Ada, Okl., and Roy E. Danuser and Emory D. Curlee, Mountain Home, Ark., for appellants.

Percy Gullic, Alton, mo., and A. W. Landis, West Plains, Mo., for respondents.

EAGER, Presiding Judge.

This is a suit in equity, instituted on June 22, 1954, by appellants as heirs of Althea Gilliam, deceased, against Gretchen Frommel Gohn, another heir, and Frank Newberry, a subsequent purchaser of the real estate involved. The primary purposes of the suit were to cancel a tax deed, to partition the real property among the heirs and Newberry by sale, and to procure an accounting of rents and profits. The real estate consists of a lot in Thayer, Missouri, described as Lot 2, Block 3 of Piland's First Addition; the amended petition alleges that there was and is thereon 'a modern dwelling and other improvements.' The suit obviously involves the title to real estate within a jurisdictional sense. We shall refer to the parties as they appeared below. Since the cause was determined by the sustaining of separate motions to dismiss the amended petition and by dismissing the cause, we must look to that petition for the controlling facts, as they will now be related.

Althea Gilliam, a resident of Oregon County, Missouri, owned the house and lot in question and certain personal property; the personal property has become immaterial since the amendment of the petition. Miss Gilliam died in 1938, leaving no husband, children, father or mother. Plaintiffs are nieces and nephews, except that one is a grandnephew; defendant Gretchen Frommel Gohn is a grandniece. Plaintiffs lived in Oklahoma, and defendant Gretchen lived in Thayer, in the home of Miss Gilliam. It is further alleged that upon the death of Miss Gilliam, in or about 1938, defendant Gretchen took possession of the real estate, converted the rents and profits to her own use, and, although under a duty to pay the taxes, failed, neglected and refused so to do for the years 1942-1944, inclusive; that the property was sold for taxes on November 5, 1945, that the father-in-law of defendant, one C. S. Gohn, purchased it for $78.09, and that he received a certificate of purchase, which he later assigned to one Ben Meeks; that on November 21, 1947, a tax deed was issued to Meeks and duly recorded; that Gretchen and one J. P. Frommel 'fraudulently conveyed' by quitclaim deed to Meeks 'as the sole and only heirs'; that defendant Newberry is the grantee in a warranty deed from Meeks, duly recorded. It was further alleged that the tax sale and deed 'were procured by defendant * * * Gohn and * * * C. S. Gohn with the fraudulent intent to deprive plaintiffs of their interest,' that defendant Newberry had knowledge of said fraud, that both Meeks and Newberry had sufficient notice to be charged with knowledge; and that the tax deed was void also for insufficiency of consideration.

Somewhat more specifically, plaintiffs alleged: that they were wholly unaware of the 'fraudulent acts' of defendant Gretchen and did not discover the facts until 1951; that Gretchen knew some of the plaintiffs, and 'could have communicated' to them the fact of Miss Gilliam's death; that plaintiffs had not had 'the benefit of higher education,' were not financially able to make frequent trips to Thayer, that plaintiffs' 'practice of written communication' with Miss Gilliam had decreased as the years passed, and that, although they presumed that Gretchen would communicate 'the fact of death or serious illness' to them, she 'deliberately concealed' the fact; that Miss Gilliam died intestate. It was also alleged that the tax sale operated in equity solely as a redemption of the property for the benefit of all the heirs, and that Meeks acquired only the undivided interests of defendant Gretchen and J. P. Frommel, and became a tenant in common with plaintiffs. Plaintiffs offered to refund the back taxes with interest. The prayers were, essentially, for an accounting of rents and profits, that the tax deed be cancelled, and that the real estate be sold in partition and the proceeds divided. A copy of the tax deed was attached to plaintiffs' amended petition as an exhibit.

The motions to dismiss were based upon the grounds: (1) that the amended petition did not allege facts upon which the relief prayed, or any relief, could be granted; (2) that it did not allege facts sufficient in law to entitle plaintiffs to any relief; and, (3) that the attempted cause of action for the recovery of the real estate and to set aside the tax deed was barred by Section 140.590 RSMo 1949, V.A.M.S., because more than three years had elapsed between the recording of the tax deed and the filing of the suit. These motions were sustained and the cause dismissed on June 27, 1956, for the stated reason that the plaiintiffs failed to state a cause of action 'in that plaintiffs (') action is barred by the statute of limitations applicable thereto.' It may be of some materiality to note here that plaintiffs abandoned a paragraph contained in their original petiton in which they alleged that defendant Gretchen took charge of and converted the assets, generally, of the estate of Althea Gilliam, and that although she purported to administer on the estate, the proceedings were void.

In an effort to simplify the matter we shall transpose and consolidate some of plaintiffs' points. (All Missouri statutory references will be to RSMo 1949 and V.A.M.S.) These are, essentially: (a) that Sec. 140.590, supra, is inapplicable because the tax sale was, in fact, only a payment of the taxes by or for a cotenant, and that such 'payment' comes within the exceptions of the statute; (b) that the sale and tax deed were void for fraud, and that Meeks, with knowledge, merely became a tenant in common; that suit was properly filed within the limitation of the ten year statute, Sec. 516.010; (c) that the tax deed was void on its face because of inadequate consideration, and because it was not attested by the county clerk; and that the limitations of Sec. 140.590 do not apply to a tax deed void on its face; (d) that, as concerns the rents and profits, this being an action for relief on the ground of fraud, the five-year period of limitations of Sec. 516.120, did not begin to run until the discovery in 1951 of the facts constituting the fraud.

On the first point, plaintiffs lean heavily on the contention that defendant Gretchen, being in possession as a cotenant, was under a duty to pay taxes, and that having procured her father-in-law to purchase the property, the purchase at the tax sale amounted merely to a payment of the taxes for the benefit of all the heirs, except those who had quitclaimed. This contention is based upon the wording of Sec. 140.590, which is as follows: 'Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where the taxes have been paid or the land was not subject to taxation, or has been redeemed as provided by law, shall be commenced within three years from the time of recording the tax deed, and not thereafter; provided, that where the person claiming to own such land shall be an infant, or a person of unsound mind, then such suit may be brought at any time within two years after the removal of such disability.' This section appears as a special limitation in the chapter on 'Collection of Delinquent Taxes.' Plaintiffs' contention that there was a 'payment' of the taxes, is made in an effort to bring the case within the exceptions of this statute.

In the case of Gearhart v. Gearhart, Mo., 213 S.W. 31, relied on by plaintiffs, a cotenant in possession had permitted and caused the foreclosure of a deed of trust executed by both cotenants; he had also purchased the property at the foreclosure sale, paying the consideration with the proceeds of a new loan on the property. In a suit by the other cotenant to establish a trust, the court held that tenants in common occupy a confidential relation toward each other, and that, as a general rule, if one of them buys up an outstanding title or encumbrance, the purchase will be deemed to have been made for the benefit of all, subject to contribution. Many cases are cited in support of this principle, and it seems to be established in the Missouri law. Going on, however, the court quoted from 7 R.C.L., p. 824, Tit. Cotenancy, Sec. 19, to the effect that a cotenant in sole possession is deemed to have undertaken the discharge of certain duties, including the preservation of the property by making repairs, the payment of interest on encumbrances, and the payment of taxes, and that where such payments are made by one cotenant, they are deemed to be the joint act of all. It was held there that the purchaser at foreclosure was deemed to hold in trust for both cotenants. It would seem that the first principle outlined above would have been sufficient to accomplish that result. The cases of Wicoff v. Moore, Mo., 257 S.W. 474, McCune v. Goodwillie, 204 Mo 306, 102 S.W. 997, and Kohle v. Hobson, 215 Mo. 213, 114 S.W. 952, cited by counsel, involve generally the duties of life tenants to preserve the property for remaindermen, or the principle already mentioned that the purchase of an outstanding interest by one cotenant inures to the benefit of all cotenants. Certain other Missouri cases cited seem entirely inapplicable.

In the case of Witcher v. Hanley, 299 Mo. 696, 253 S.W. 1002, loc.cit. 1004, the court, after...

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    • July 14, 1958 the alleged fraud; and that the five-year period runs from the time the means of discovery were available, citing Gilliam v. Gohn, Mo.Sup., 303 S.W.2d 101; Warwick v. De Mayo, 358 Mo. 130, 213 S.W.2d 392; Heisler v. Clymer, 179 Mo.App. 110, 161 S.W. 337; Bent v. Priest, 86 Mo. 475;......
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    ... ... Barber, 361 Mo. 716, 236 S.W.2d 293, and Gilliam v. Gohn, Mo.Sup., 303 S.W.2d 101, on the theory that they dispose of the case on appeal. While the cases cited dispose of some of appellants' ... ...
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    ...part . . . ; usually the employment of some means or device to prevent discovery shouldbe shown." Id. at 920 (quoting Gilliam v. Gohn, 303 S.W.2d 101, 107 (Mo. 1957)). "Silence becomes misrepresentation only when there is a duty to speak, such as 'when one of the parties has superior knowle......
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