Haarstick v. Gabriel

• Decision Date: 22 December 1906
• Parties: HAARSTICK v. GABRIEL et al.
• Court: Missouri Supreme Court

98 S.W. 760

200 Mo. 237

HAARSTICK v. GABRIEL et al.

Supreme Court of Missouri. Division No. 1.

December 22, 1906.

1. LIMITATION OF ACTIONS—REAL ACTIONS— POSSESSION.

Where, in an action to quiet title to certain land, plaintiff had held the legal title since 1869, but no one had ever been in possession of the land and had never paid any taxes thereon for more than 30 years, plaintiff's action was not barred by the 30 years statute of limitations. Rev. St. 1899, § 4268.

2. QUIETING TITLE—STATUTES—LIMITATIONS.

Since Rev. St. 1899, § 650, authorizing a suit to determine and quiet the title to land, does not prescribe any period within which such suit must be brought, the limitations applicable thereto are prescribed by Rev. St. 1899, c. 48, art. 1, relating to real actions, and not by article 2, applicable to personal actions.

3. SAME.

Where a suit to quiet title as provided by Rev. St. 1899, § 650, was brought less than seven years after the act took effect, it was not barred by limitations.

4. STATUTES—PROSPECTIVE OPERATION.

Act March 6, 1903, requiring plaintiff in a suit to set aside a tax deed to offer to refund taxes and penalties paid by the purchaser, etc., is prospective only in operation, and does not apply to tax deeds or sales of land for taxes or to taxes paid prior to the date the act took effect.

Appeal from Circuit Court, Madison County; Robert A. Anthony, Judge.

Action by Henry C. Haarstick against J. P. Gabriel and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Moses Whybark, M. R. Smith, D. M. Tesreau, and B. B. Cahoon, Sr., for appellants. John C. Brown and J. H. Chitwood, for respondent.

VALLIANT, J.

Suit under section 650, Rev. St. 1899, to quiet title to 80 acres of land in Madison county. The petition is in the usual form, and states that plaintiff is the owner in fee of the land described; that defendants claim some title to it the nature of which plaintiff does not know. The prayer is that the court ascertain and adjudge the title as between plaintiff and defendants. The answer denies that plaintiff owns any interest in the land and asserts full title in defendants. It then goes on to state that plaintiff acquired title to the land in 1879; that he then and has ever since resided in St. Louis, and, although amply able to pay taxes on the land, neglected and refused so to do, and in consequence it was sold for taxes in 1882 and the sheriff's deed was then duly recorded, and defendants hold title derived from that sale; that from that day to this plaintiff has never paid any taxes, but the defendants and those under whom they claim have paid all taxes as they accrued, to the amount, with what was paid at the sheriff's sale, to about $500.00; that plaintiff by his conduct has abandoned the land and has been guilty of such laches as ought to preclude his recovery in this suit. Then, for a third defense, the answer refers to the act of March 6, 1903, which requires a party when suing to set aside a tax deed to tender in his petition or offer to pay the amount of taxes and penalties his adversary has paid in acquiring the tax title and the taxes he has since paid, and prays that, if the court should adjudge the title to be in plaintiff, it require the plaintiff to reimburse defendants for their expenditures in payment of taxes, etc., and charge the amount of same as a lien on the land. At the trial plaintiff introduced a patent and deeds bringing the title from the government down to himself showing a perfect paper; title vesting in him in 1869. Defendant introduced evidence as follows: The record of the circuit court of Madison county in a suit, wherein the county collector was plaintiff and H. C. Haarstick was defendant, and in which it was adjudged that the state had a lien on this land for taxes delinquent for several years, amounting to $46.33, and it was adjudged that the land be sold to satisfy the judgment. It was alleged in the petition that the owner, H. C. Haarstick, was a nonresident of the state; thereupon an order of publication was made against H. C. Haarstick, and it was so published. The records of the county showed at that time that the title stood in the name of Henry C. Haarstick. The judgment in the tax suit was by default. The sheriff sold the land under that judgment and executed a deed to the purchaser which was recorded December 21, 1882. The defendants' title is based on that deed. Subsequently there was another suit by the collector for the taxes of 1896 and 1897, in which suit one L. N. Lord and one Charles Hockaday and "all unknown claimants and owners" were made parties defendant, and publication against the defendants so named. A judgment by default was rendered in that suit, execution and sale followed, and sheriffs' deed executed and duly recorded. Defendants own whatever title passed under that sale. There was testimony of defendants tending to show that they had paid all the taxes on the land from 1870 to date, including the taxes and penalties covered by those two judgments and sheriffs' sales, which aggregated about $500. Respondent says that the abstract is imperfect on that point, because it fails to produce the evidence which defendants offered to prove payment of the taxes for some of the years, and which, if produced, would show that the taxes so claimed to have been paid were not assessed according to law, and hence not lawful taxes. The land is unimproved, and has not been in the actual occupation of any one. The judgment in the circuit court was for the plaintiff, adjudging the title to be entirely in him and that defendants have no interest in the land. From that...