Giraldin v. Howard

• Decision Date: 02 February 1891
• Citation: 103 Mo. 40,15 S.W. 383
• Parties: GIRALDIN v. HOWARD et al.
• Court: Missouri Supreme Court

15 S.W. 383

103 Mo. 40

GIRALDIN v. HOWARD et al.

Supreme Court of Missouri, Division No. 1.

February 2, 1891.

APPEAL — OBJECTIONS NOT MADE BELOW — TAX-SALES — REDEMPTION.

1. A suit to redeem from a tax-sale having been brought by a purchaser at a sale under a trust-deed, who held the note secured, and bid in the land for the trustee by whom the sale was made, the objection that the plaintiff is not the real party in interest cannot be first made in this court.

2. Though the payee of a note secured by trust-deed and the trustee were parties to a suit for taxes due on the land, the judgment does not bind a holder of the note who was not made a party, and a subsequent holder who bought the note for the trustee may redeem from the tax-sale.

3. Where the purchaser at the trustee's sale redeems from the tax-sale, the decree should allow the holder of the tax-title a reasonable time in which to redeem from the trust-deed, and declare his failure to do so an affirmance of the sale thereunder, and it is neither necessary nor proper to decree a second sale under the trust-deed.

Appeal from St. Louis circuit court; L. B. VALLIANT, Judge.

Huff & Hereford, for appellant. Willi Brown, for respondent.

BRACE, J.

This is a bill in equity instituted by respondent by which he seeks to redeem from sale under a tax judgment a lot of ground in St. Louis city. The facts alleged in the bill, and developed by the evidence, are as follows: William Still, trustee for Ann Still, his wife, being the owner of the lot in question, executed a deed of trust dated October 1, 1872, to Joseph T. Donovan, trustee, to secure the payment of a principal note of even date for $1,200, payable in three years, and six interest notes, payable to Francis W. Foly. Foly at the time was the clerk of Joseph T. Donovan & Co., and in fact gave to Still no consideration for the note. Foly indorsed the note at once without recourse, and delivered it to Joseph T. Donovan & Co., who in fact furnished the consideration therefor. Joseph T. Donovan & Co. sold the note to Charles P. Wonderly, and Charles P. Wonderly held it until about the 3d of January, 1876, and then sold it to H. W. Voght. Voght held the note until April 27, 1882; then transferred it to Donovan & Co. Donovan & Co. held the note until about May, 1882, when they sold it to L. Longermeyer. Longermeyer held the note until the 26th day of November, 1884. On the 26th of November, 1884, Donovan & Co. again came into possession of the note. By some arrangement the note was transferred by them to Giraldin, the plaintiff herein, who executed his note therefor to Donovan & Co. In 1886, Donovan, as trustee, sold the property under the deed of trust, and the plaintiff became the purchaser at the price of $225, which amount Donovan credited on the note, and executed to him a trustee's deed, dated January 28, 1886. Still, as trustee for his wife, and owner of the property in question, failed to pay the state, county, and city taxes upon the property for the years 1874 and 1876. These taxes remained delinquent, so that in June, 1878, the state of Missouri, at the relation of M. A. Rosenblatt, brought suit against William Still, Ann Still, Joseph T. Donovan, and Francis W. Foly, to enforce the payment of these taxes, and subject the property assessed to sale. All these defendants were personally served, and judgment was duly obtained for the amount of the taxes. Under the judgment, the property was duly advertised and sold. The defendant A. B. Howard became the purchaser, and continued the owner until August, 1883, when defendants Wallis and Zimberly purchased from him, took possession of the property, and have ever since continued in possession thereof. Since said purchase they have made improvements on the property amounting to $401.24. Upon these facts the plaintiff, Giraldin, filed his bill in equity to redeem this property, and deposited with the clerk of the court, under date of March 15, 1886, the sum of $260, being the amount, as claimed, of the taxes due, with interest; and the point upon which he relies to entitle him to this right to redeem is that Voght, who was the holder of the note at the time of the tax-suit, was not made a party defendant therein. The court found that the title acquired by the plaintiff, Giraldin, by his purchase at the trustee's sale, was held by him for the use and benefit of Donovan; that before the purchase of the Still note from Voght by Donovan there was no contract made between Donovan and Giraldin as to the purchase of the same for the use of plaintiff, and that the purchase was wholly on the responsibility and for the use of Donovan; that the Still note is the property of the trustee, Donovan, and that the purchase of the same was for the use and benefit of the said Donovan. The case was dismissed as to Howard, and the court adjudged and decreed that the defendants Wallis and Zimberly, as owners of the title conveyed by the sheriff under execution in the...