Gulley v. Waggoner
| Decision Date | 03 March 1914 |
| Citation | 164 S.W. 557,255 Mo. 613 |
| Parties | JAMES V. GULLEY et al. v. VICTOR WAGGONER et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court -- Hon. Jesse C. Sheppard, Judge.
Affirmed.
Henry N. Phillips for appellants.
(1) The judgment is for the wrong party, for the reasons: (a) The cause of action herein, was barred by the Statute of Limitations. Sec. 11506a, R.S. 1909; Laws 1872, p. 130, sec 222; Bird v. Sellers, 122 Mo. 23. (b) The sheriff's deed was made and recorded in October, 1904 and this suit was instituted January 28, 1909, nearly five years thereafter. (c) The testimony shows that James R Gulley, the second husband of Ruth Rushin, had abandoned the land for at least ten years before the institution of this suit; and that when Poore bought it, at the tax sale, and went into possession, it had been abandoned. (d) It was sold for taxes for the years 1900 and 1901. (2) The court erred in not holding that plaintiffs had no right, estate or title in and to these premises. (a) The deed from Brannum and wife, was to Girdin J. Rushin, and not to Jordan J. Rushin. (b) The plaintiffs claim to be heirs of Jordan J. Rushin, and not of Girdin J. Rushin. The record shows, and the deed, that the conveyance from Brannum was to Girdin J. Rushin, and not to Jordan J. Rushin. (c) The suit at the sale, of which Poore purchased, was against Girdin J. Rushin, his unknown heirs, and his unknown devisees. (d) The testimony shows that long before the institution of this suit, James R. Gulley had taken the heirs of Ruth Rushin to Illinois, and they were unknown to the assessor and the collector. (3) It is a condition precedent, to the maintenance of an action in ejectment, or any other action for the determination of a title to, or for the possession of land, that the plaintiff therein shall in his petition offer to refund to the defendants therein, against whom such recovery is sought, all taxes paid by the defendant, or other persons. Sec. 11508, R.S. 1909; Laws 1903, pp. 254-255; Manwaring v. Lumber Co., 200 Mo. 718. The tax receipts, to which there was no objection on the part of the plaintiff, show that the defendant had paid out considerable money in the way of taxes, as well as costs of the tax proceedings, and in making up the judgment the court paid no attention to them whatever. The court, in rendering its judgment, could not certainly have offset the rent of the land from the time of Poore's occupancy, say, January 1, 1905, to January 1, 1909, as the evidence clearly shows that Poor had improved the land more than the testimony shows the rental value to be. It is clearly an oversight on the part of the court, and to which its attention was called by the motion for a new trial. (4) The collector in bringing a back tax suit is only required to sue the record owner. R.S. 1909, sec. 11498; Stuart v. Ramsey, 196 Mo. 414. (5) While it is true, in a suit for taxes, brought against the record owner, that the purchaser at the tax sale does not take the title, if he had actual notice, at the time of the sale and conveyance to him by the sheriff, that such apparent owner was not the real owner, yet that cuts no figure in this case, as there was no evidence to show that Poore had any reason to believe anything but that the sale was against the right owner, and in good faith, which was the real truth. Zweigart v. Reed, 221 Mo. 33.
Whaley & Ing and B. J. Puckett for respondents.
(1) The cause of action was not barred by limitation under Sec. 11506a, R.S. 1909. This section was not thought of nor was it known to be in existence, or mentioned by either side during the trial. The question was not passed upon by the court, nor pleaded by the defendant, and even if it should have been, it is not available in this case on account of one of its provisions, i. e., that minors shall have two years after the removal of their disabilities in which to begin suit, and the undisputed evidence shows that at the time of filing the suit, the plaintiff, James V. Gulley, was but 22 years old and the other two plaintiffs were younger. (2) Even if they were not minors this could not be urged on appeal for the reason that it was not before the court during the trial, was not pleaded nor passed upon by the trial court. The limitation pleaded was the ten-year statute and not Sec. 11506a, R.S. 1909. The place was not abandoned. Plaintiffs' good faith was shown by the payment of all the taxes up until Jan. 6, 1900, and shortly after this, taking these children to Illinois and leaving their relative, James Brannum, to look after the property for them. (3) The record shows beyond the possibility of a doubt that Ruth Gulley had continuous, open, notorious, exclusive and adverse possession of the premises in controversy from about 1879 until her death. That plaintiffs are her only heirs; that they continued to live thereon thereafter with their father until taken by him to Illinois, and the record shows that the father was on the premises and paying taxes Jan. 6, 1900. (a) There is no possession shown in defendant Poore until the fall of 1904, after he got the tax deed. (b) This property was sold for taxes as the property of Girdin J. Rushin, his unknown heirs and devisees. Plaintiffs are not the heirs of Girdin J. Rushin, and were not shown so to be. They are the only heirs of Ruth Gulley, deceased, and claim title only through her. (4) The court in rendering its judgment offset the rents and damages against the taxes, interest and costs paid by defendant Poore, and consequently did not mention in the judgment the taxes, interest and costs nor did it mention the rents and profits from the rendition of judgment until the possession of the premises were delivered to the plaintiffs, as prayed for in their petition. (a) If any one was injured by this action of the court it was the plaintiffs and not the defendant. The evidence clearly shows that while Poore only claimed to have paid $ 71.63, as pleaded in his answer, for taxes, interest and costs for which he asked judgment, the evidence shows that he got out of Waggoner the sum of $ 100 net for the farm, also that when he took possession of the land he rented the house alone for $ 1.50 per month. This is defendant's own testimony given by himself. And $ 1.50 per month from October, 1904, when Poore took possession, to the 26th day of May, 1909, the date of trial, would be 55 months or a total of $ 82.50. This alone was more than Poore's claim. (b) The greater weight of the evidence shows the rental value of the premises to be not less than $ 5 per month or $ 60 per year, and the court in its judgment fixed no monthly rental value of the premises from the rendition of the judgment until possession of the premises was delivered to the plaintiffs as prayed for in their petition.
This is an action of ejectment brought for eighty acres of land. The plaintiffs are the only heirs at law of Ruth Gulley nee Rushin, whose father acquired title to the eighty acres of land in dispute through a warranty deed in September, 1858, from James Brannum, who was the patentee of the land from the United States.
His daughter Ruth was twice married. After the death of her first husband she was married in 1883 or 1884 to James R. Gulley. She died about 1899, leaving the three plaintiffs, the fruit of her last union, as her only heirs at law. She went into possession of the land in suit some years after the death of her father and except for a few months, resided on it from 1879 until her death in 1899. About a year after her death her husband took the plaintiffs, who were then minors, to Illinois, having put the land in charge of one Brannum, the son of the original patentee and the cousin of his deceased wife. The husband paid all the taxes on the land until he left the State and exhibited a chain of tax receipts up to the sixth of January, 1900, inclusive. In 1904 the land was sold in a proceeding against "Girdin J. Rushin and his unknown heirs and devisees," and purchased at the tax sale by defendant J. F. Poore, who then sold it to his codefendant Waggoner, who subsequently reconveyed to Poore, and remained on the land as Poore's tenant.
This action was begun in January, 1909. The defendants by their answer admit possession of the premises, the defendant Waggoner as tenant, and Poore claiming to be owner under the sheriff's deed. Defendant Poore also pleaded the ten-years Statute of Limitations based on adverse possession, and pleaded further the payment of taxes by him from 1904 up to the bringing of the action and asked judgment and a lien therefor "if defeated in this action." During the progress of the trial plaintiffs were permitted to amend their petition by tendering the defendant the taxes claimed in his answer.
The evidence showed that in the transaction whereby defendant Poore regained the title to the land from his codefendant Waggoner, he returned Waggoner $ 100 of a cash payment of $ 200 which Waggoner had made to him. The evidence further showed that in the deed to the grandfather of the plaintiffs, he was described as Girdin J. Rushin, but he seems to have been called by his neighbors Jordan J. Rushin.
The case was tried by the court upon the waiver of a jury and judgment rendered for plaintiffs for one cent damages, from which defendants have appealed and assigned various errors, which, so far as material, will be discussed in the opinion.
OPINION.BOND J. (After stating the facts as above.) -- The first point made for appellant is that this action is barred by the Statute of Limitations of three years, fixed as the time...
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