Harttmann v. Owens

• Decision Date: 08 April 1922
• Docket Number: No. 22807.,22807.
• Parties: HARTTMANN v. OWENS.
• Court: Missouri Supreme Court

240 S.W. 113

293 Mo. 508

HARTTMANN v. OWENS.

No. 22807.

Supreme Court of Missouri, Division No. 1.

April 8, 1922.

Appeal from Circuit Court, Jackson County; C. B. Burney, Judge.

Suit by George K Harttmann against E. H. Owens. From judgment for plaintiff, defendant appeals. Affirmed.

John B. Young and Dickinson & Hillman, all of Kansas City, for appellant.

Guthrie, Conrad & Durham and Hale Trouts, all of Kansas City, for respondent.

SMALL, C.

I. Suit to quiet title and cancel tax deeds as cloud on title. The amended petition alleges that plaintiff is the owner of lots 35, 36, and 37 of Marlborough Heights resurvey and lot 895 of Marlborough Heights, in Kansas City, Mo.; that defendant is grantee in two city tax deeds executed for said property by said city, one dated October 22, 1918, and one dated June 30, 1919, for the taxes of 1912; that both said deeds are void because they were not executed in form required by the charter and ordinances of said city; that at the tax sale said lots were not separately offered for sale; that the pretended sale was made when there were no bidders present and at a time when there was no authority to make a sale; that the sale was made to Kansas City as a competitive bidder without its being made to first appear that the lots in question could not be sold to others; that said sale was made in part for the purpose of collecting delinquent park taxes, for which there was no authority of law; that the last deed purports to be made in correction of the first, for which there is no authority of law. Many other specifications of failing to comply with the law in said tax sale are made in the petition which it is not necessary to notice.

The petition further alleged that plaintiff had deposited with the clerk of the court $26.90, being the amount paid by the defendant at such tax sale, with 12 per cent. interest per annum thereon from the date of said sale so far as plaintiff was advised, and that, if said sum was insufficient, plaintiff was willing to pay defendant the balance due for taxes, etc., paid out by him. The prayer was for the court to cancel said tax deeds, and decree that plaintiff was the owner of said property free and clear of the lien thereof, and for general relief.

The answer put the allegations of the petition In issue, and set up that plaintiff was not the owner of said property, because he claimed under certain deeds, one a sheriff's deed under execution upon a confessed judgment against the Marlborough Realty Company, and another executed by said company after its charter had been forfeited for failure to make reports to the Secretary of State as required by law; that said company before and its trustees after its charter was forfeited were guilty of laches, in that they made no effort to pay any taxes on said property for more than six years, and had abandoned said property; that plaintiff is not the real party in interest, but that he and one B. Howard Smith are in collusion to acquire the property of said defunct corporation, in fraud of the rights of the stockholders and creditors of said company, and that all their transactions mentioned in the answer were for that purpose. The answer also sets up for affirmative relief, alleging that defendant is the owner of said property; that plaintiff claims some interest therein through said quitclaim deeds from the Marlborough Realty Company; that defendant purchased said land in good faith without notice of any defects in the title; that plaintiff's deeds are a cloud on his title. The prayer is for the court to try and determine the rights of the parties, and, if the court finds the defendant is the sole owner, to bar plaintiff forever from claiming any title thereto. If the court should find against defendant, to adjudge plaintiff to pay the full amount defendant paid at said tax sale and for all subsequent taxes, general and special, with 12 per cent, interest thereon. The reply admitted plaintiff claimed under said deeds, but denied they were fraudulent or invalid, or that plaintiff had any title. Said two tax deeds were introduced in evidence by plaintiff, and they were dated as stated in the petition, and were identical in form except as shown by the words in italics in the following copy of the second deed. The words in italics were omitted from the first deed, but were contained in the second:

"City Tax Deed. Know all men by these presents, that, whereas, the following described real property, viz. lots 35 and 36 and 37, Marlborough Heights (resurvey of lots 906 to 1005, inclusive), further described as lots 35, 36, 37, resurvey of lots 906 to 1005, inclusive, of Marlborough Heights, situated in Kansas City, in the county of Jackson, the state of Missouri, was subject to taxation for the year A. D. 1912; and whereas, the taxes assessed upon the said real property for the year aforesaid remained due and unpaid at the date of the sale hereinafter mentioned; and whereas, the city treasurer of said Kansas City did on the 22d day of November, A. D. 1912, by virtue of the authority in him vested by law, at the sale begun and publicly held on the first Monday of November, A. D. 1912, the first day on which the annual tax sale began, and continued on each successive secular day to and including said first-mentioned day, expose to public sale, separately and in consecutive order each lot as aforesaid, at the office of the city treasurer, in Kansas City aforesaid, between the hours of 10 o'clock in the forenoon and 5 o'clock in the afternoon, in conformity with all the requirements of the law in such case made and provided, separately offer for sale and did separately sell, the real property above described, for the payment of taxes, penalty, and costs then due and unpaid upon said real property; and whereas, at the place aforesaid, Kansas City (a municipal corporation), of the county of Jackson and state of Missouri, having offered to pay the sum of twelve dollars and twenty cents, being the whole amount of taxes, penalty and costs then due and remaining unpaid on said real property, for all of lots 35 and 36 and 37, Marlborough Heights (resurvey of lots 906 and 1005, inclusive), further described as lots 35, 36, 37, resurvey of lots 906 to 1005, inclusive, of Marlborough Heights and lot 895, Marlborough Heights, and payment of said sum having been by said Kansas City as aforesaid, made to said city treasurer, the said property was stricken off to said Kansas City as aforesaid at that price; and whereas, the said Kansas City (a municipal corporation) by its auditor did on the 8th day of October, A. D. 1918, duly assign the certificate of purchase of the property as aforesaid, and all its right, title and interest to and in said real property to E. H. Owens of the county of Jackson and state of Missouri; and whereas, five years have elapsed since the first day on which the annual tax sale began, and the said property has not been redeemed therefrom, as provided by law; and whereas, the city treasurer of Kansas City aforesaid...