Graves v. Ewart

• Decision Date: 24 June 1889
• Court: Missouri Supreme Court
• Parties: GRAVES <I>et al.</I> v. EWART <I>et al.</I>

11 S.W. 971

99 Mo. 13

GRAVES et al. v. EWART et al.

Supreme Court of Missouri.

June 24, 1889.

QUIETING TITLE.

One who has the legal title to land, being out of possession, cannot sue in equity to remove a cloud on his title, but will be left to his legal remedy.

Appeal from circuit court, Gentry county; CHARLES H. S. GOODMAN, Judge.

H. M. Ramey, for appellants. John E. Burden and Thomas, McCullough & Perry, for respondents.

BLACK, J.

This is a suit in equity to set aside a judgment rendered in the De Kalb circuit court, and to cancel a deed made by virtue of a sale under an execution issued upon the judgment. The court granted the prayer of the petition, and also set aside other deeds to subsequent purchasers. The history of the title on the one side and the other, prior to the judgment and deeds which were set aside by the decree of the court, is as follows: The land in suit consists of 120 acres in De Kalb county. Benjamin Graves owned this land and other lands in Atchison county. He died a resident of the state of Kentucky, in the winter of 1873-74, leaving a will whereby he devised these Missouri lands to the children of two deceased sisters. These devisees resided in this state. The will was probated in that state in 1874, and a copy of the same, and the probate thereof, was recorded in the recorder's office of De Kalb county in 1884. The evidence shows that these devisees were also the heirs at law of the deceased. They commenced a suit for the partition of the land in both counties in the Atchison circuit court, which suit resulted in a judgment for the sale of the land. The sheriff of De Kalb county, under an order of sale, sold the 120 acres to Samuel Cook and James Ewart. This sale was made in April, 1880, and the sheriff then executed a deed to each of the purchasers, and thereafter made report to the Atchison circuit court, but that court declined to approve the sale, and, on motion of the parties to the suit, set it aside. The purchasers had no notice of this motion. The land was again sold under an alias order, and John E. Burden became the purchaser, and he holds the title thus acquired in trust for the various parties to the partition suit. The defendants in this suit assert title under Cook and Ewart. The defendants also offered in evidence a tax-deed to 80 acres of the land in question, dated in 1870, and in which James Ewart is the grantee. This deed was excluded by the court. This brings us to the judgment and deeds which were set aside by the decree in this case. In 1878, suit was instituted in the De Kalb circuit court in the name of the state, to the use of the collector, against Benjamin F. Graves and James Ewart, to enforce the state's lien for taxes due on the 190 acres for the years 1870 to 1876. Ewart was served with summons, and there was an order of publication as to Benjamin F. Graves, who had been dead for four or five years. John Pritchard became the purchaser of the land at a sale under an execution issued on this judgment. He conveyed to Crenshaw, who conveyed a part to Reece, and the residue to Samuel Cook, the same person who was one of the purchasers at the first partition sale. The plaintiffs in this suit are Burden and the various persons from whom he purchased the property at the second partition sale, and the defendants are Cook, Ewart, Pritchard, and other persons holding under them. The relief prayed for is asked upon the allegations that James Ewart had no title whatever to the land; that plaintiffs were not parties to the tax-suit; and that Benjamin F. Graves, who was made a defendant, and notified by publication only, was dead when the tax-suit was commenced. These suits to enforce the tax-lien must, under the statute, be brought against the owner or owners of the property. Persons not made defendants are not affected by the judgment. We have repeatedly held that the purchaser at these sales acquires, and acquires only, the title and interest of the parties who are made ...