Handlan v. Wycoff
| Decision Date | 29 April 1922 |
| Citation | 240 S.W. 458,293 Mo. 682 |
| Parties | ALEXANDER H. HANDLAN, Appellant, v. EMMA WYCOFF, Administratrix, et al. ALEXANDER H. HANDLAN, Appellant v. MARGARET McMAHON, Administratrix, et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court. -- Hon. G. A. Wurdeman, Judge.
Reversed and remanded (with directions).
H. A Loevy for appellant.
(1) The special tax proceedings are null and void as to appellant because there was no suit against nor service of process therein on or appearance by appellant. The special tax judgments are clouds on appellant's title by reason of service of writs on another person of the same name and rendition of judgments thereon, in which case equity grants relief by injunction. Levy and sale under execution would take appellant's property without due process of law. U S. Constitution, 14th Amendment; Mo. Constitution, art. 2, sec. 30. (2) No estoppel in pais is created by the evidence in these two cases: (a) Appellant did not take any part in the defense of the special tax cases, brought by both respondents against his son and the latters' wife. He merely told his son when the latter told him he (the son) had been sued, to "fight" the suit. (b) He was not an actual or record party to those suits. Womack v. St. Joseph, 201 Mo. 479; Perkins v. Goodin, 111 Mo.App. 439. (c) He would not be estopped in these injunction cases even if he had an interest in subject-matter of the tax bill suits. Perkins v. Goodin, 111 Mo.App. 442. (d) Nor because he had actual knowledge of the tax-bill suits from his son who was served. Greene v. Meyers, 98 Mo.App. 441; Siling v. Hendrickson, 193 Mo.App. 385; Kingston Case, 204 Mo.App. 700; Meyers Case, 126 Mo.App. 549; Bank v. Suman, 70 Mo. 533; Wilson v. Ry. Co., 108 Mo. 596; Harness v. Ry. Co., 120 Mo. 249; 21 R. C. L. 1263; Young v. Downey, 150 Mo. 326; Tourville v. Wabash, 61 Mo.App. 533. (e) Nor even if he had been present at the trials thereof. Lee v. Short, 149 Iowa 345. (f) Nor even if he had employed counsel to assist his son or testified as a witness in his favor or given other active support in the tax-bill cases in court. He would not thereby become a party to the record or become bound by the judgments therein. State ex rel. Kane v. Johnson, 123 Mo. 54; Loftis v. Marshall, 134 Cal. 394; Williamson v. White, 101 Ga. 276; Lee v. School Dist., 149 Iowa 345; Cockins v. Bank, 84 Neb. 624. (g) Nor was he estopped by his son's (the only and actual defendant in the taxbill cases) informing him of the suits. Tourville v. Wabash, 61 Mo.App. 533. (3) There was no evidence that appellant deliberately, intentionally and with the fraudulent purpose of misleading Mr. Rodgers, told him in Wycoff's case that the Kirkwood property belonged to his son and that he did not own it. Unless that is shown, there is no estoppel: (a) There must not only be a false statement with intent to deceive, but it must have been made purposely and intentionally. DeBerry v. Wheeler, 128 Mo. 90. (b) To operate as an estoppel the act must have been with the intent that the other party should act on it. Trust Co. v. Horn, 83 Mo. 114; Burk v. Adams, 80 Mo. 504; Bigelow Est. 682; Delaschmutt v. Taylor, 261 Mo. 443. (c) And intent by the person disclaiming title that the other party will act upon it must be shown. Ford v. Fellows, 34 Mo.App. 632.
Rodgers & Koerner for respondent.
(1) Judgment recovered in an action on a special tax bill to which action the record owner of the property described in the tax bill is made defendant, is a valid lien on said property. Vance v. Corrigan, 78 Mo. 94; Rothenberger v. Garrett, 224 Mo. 197; St. Joseph v. Forsee, 110 Mo.App. 130. (2) One who deceives another into believing a certain state of facts to exist and to act on such belief is estopped from thereafter denying the truth of such facts. Lumber Co. v. Craig, 248 Mo. 319; Guffey v. O'Reilly, 88 Mo. 429. (3) Estoppel may arise from silence where there is a duty to speak, as well as from affirmative words or conduct. Pelkinton v. Ins. Co., 55 Mo. 172; Palmer v. Welch, 171 Mo.App. 597. (4) One who clothes another with the appearance of ownership of property is estopped from afterwards claiming ownership in himself to the detriment of a party who acted in reliance upon such appearance. Zehner v. Stark, 248 Mo. 39; Mangold v. Bacon, 229 Mo. 459; 16 Cyc. 762. (5) Where A aids B in deceiving C into believing that certain property is owned by B, and into acting on that belief, A is estopped from thereafter asserting title in himself as against C. State to use v. Potter, 63 Mo. 226; Bigelow on Estoppel (6 Ed.) p. 651. (6) He who comes into a court of equity must come with clean hands. Seibel v. Higham, 216 Mo. 137; Creamer v. Bivert, 214 Mo. 485; Miller v. Kelsay, 114 App. 605. (7) He who seeks equity must do equity. 1 Pomeroy's Eq. Jur. (3 Ed.) p. 637, sec. 385; Black v. Early, 208 Mo. 311; Cravens v. Moore, 61 Mo. 178; 16 Cyc. 143.
OPINION
In Banc.
-- These actions are to enjoin the levying of executions on separate special judgments recovered by John F. McMahon and Robert Wycoff, respectively, on tax bills for the construction of sewers in Kirkwood, St. Louis County. The cases were tried as one in the circuit court. Plaintiff appealed from a judgment dismissing the bills. For the history of these cases see Kirkwood v. Handlan, 182 Mo.App. 626, 168 S.W. 346, and State ex rel. Kirkwood v. Reynolds, 265 Mo. 88, 175 S.W. 575.
The petition states in substance that appellant bought the property in 1886; that deeds were made to A. H. Handlan, Jr., which was his name at the time; same were at once recorded; that he alone has been the owner ever since; that his father, bearing the same name, died in 1893, and appellant then ceased using the suffix, and his son in turn adopted it, that tax bills were issued against his property to contractors McMahon and Wycoff, suits brought by them and prosecuted as herein stated, and resulted in certiorari and quashal of judgment of the Court of Appeals, and issue of execution in McMahon Case and threat to issue in Wycoff Case; that such judgments, by reason of similarity of defendant's name with his, were clouds on his title and prays that enforcement of execution by sale be enjoined.
The answer of McMahon admits the issue of the tax bills July 19, 1907, in each of which A. H. Handlan was named as owner; that suits were brought and writs served on A. H. Handlan, Jr., and Ella, his wife, in the city of St. Louis; that they did not answer or plead to the merits, but appeared solely for the purpose of contesting the jurisdiction of the court over their persons; denies that plaintiff has ever since 1886, or at any time, been the only record owner of said property; admits plaintiff was not made a defendant in said suits to enforce said tax bills; admits McMahon has caused executions in said causes to be issued, directed to the sheriff of St. Louis County, and that said sheriff, unless restrained, will execute said writs; denies that said tax bills, suits and judgments are clouds on plaintiffs's title; denies that plaintiff has any title to said property or, if he has, said judgments and tax bills are valid liens; avers that the record title to said property was vested in Alexander H. Handlan, Jr., at the time of the issuance of said tax bills; that at said time plaintiff was not known by that name, but his son was the only person identified by that name; that said suits were brought in reliance on said records against plaintiff's son and his wife, Ella, who appealed from the judgments rendered in said suits to the St. Louis Court of Appeals, where the judgment was reversed and the reversal was quashed by the Supreme Court; that said Handlan, Jr., and his wife appeared in all of said proceedings by the attorney now representing plaintiff; that plaintiff had full knowledge at the time of the issuance of said tax bills and proceedings to enforce them and of all the steps taken by the said Alexander H. Handlan, Jr., and stood silently by during all of said time and made no claim to said property until more than five years had elapsed after the issuance of said tax bills; that plaintiff, knowing his son had assumed the name of Alexander H. Handlan, Jr., and that plaintiff was no longer known by that name, failed and neglected to give any notice on or by the records of St. Louis County that said property belonged to him, and that by permitting said property to remain in the name of Alexander H. Handlan, Jr., plaintiff held out and represented to the public that the title thereto was vested in his son; that defendants herein have acted in reliance upon said records and upon the implied representations of plaintiff thereby so made and have been put to large expense, all with plaintiff's knowledge, and plaintiff has stood by silently until he deemed said tax bills barred by limitation. Wherefore he is estopped, etc.
The answer in the Wycoff Case is the same, except (1) that the only defendant in his suits on the tax bills was Alexander H. Handlan; (2) that issue of execution by him on his tax-bill judgment was threatened and special plea of estoppel by alleged misrepresentation by appellant, that his son and not he was the owner of the property.
The reply in each case was a denial of new matter.
In 1886, plaintiff bought three adjacent tracts in Kirkwood aggregating about eighteen acres. His deeds were recorded at once. He was then known as Alexander H. Handlan, Jr., to distinguish him from his father who had the same name. The deeds were taken to him in that...
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