Heagerty v. Hawkins

• Decision Date: 07 September 1943
• Docket Number: No. 38478.,38478.
• Citation: 173 S.W.2d 923
• Parties: HEAGERTY v. HAWKINS.
• Court: Missouri Supreme Court

173 S.W.2d 923

HEAGERTY v. HAWKINS.

No. 38478.

Supreme Court of Missouri, Division No. 1.

September 7, 1943.

Appeal from Circuit Court, Lawrence County; Emory E. Smith, Judge.

Action in ejectment by John Heagerty against H. K. Hawkins. From a judgment for plaintiff, defendant appeals.

Reversed and remanded with directions.

D. S. Mayhew, of Monett, for appellant.

Robert Stemmons, of Mount Vernon, for respondent.

VAN OSDOL, Commissioner.

This case involves the title to real estate. The petition is in ejectment, alleging the right of possession of two and a fraction lots in Pierce City. The answer contains a general denial, and asks affirmative equitable relief, praying for a decree of cancellation of a tax deed under which plaintiff claims title, for a decree quieting title, and for a decree vesting title in defendant subject to a refund as provided in Section 11179, R.S. 1939, Mo. R.S.A. § 11179. The reply denies the allegations of the answer and pleads that the defendant is estopped by the rendition of a final judgment on the merits in a former action wherein the title to the property was adjudged to be in plaintiff herein. The trial court found for plaintiff, and defendant has appealed.

The petition is in conventional form. It is necessary that certain allegations of the answer and reply be set out fully. The answer alleges that the title to the real property "is in defendant, subject to a lien for money expended by plaintiff, in an attempted purchase under a tax sale in November, 1939, for the price and sum of Ten Dollars, and for taxes paid by the plaintiff on the lands described in plaintiff's petition for the year 1939, 1940 and 1941, together with the lawful rate of interest on the money paid out by plaintiff, as provided by Statutes of 1939, Section Number 11179. * * * defendant states that the assessor duly elected and qualified and acting for Lawrence County, Missouri, undertook to assess said real estate for taxes for the years 1934, 35, 36, 37 and 38. * * * that in the month of September, 1939, one Vernon McPherson, duly elected, qualified and acting collector for Lawrence County, Missouri, pretending to act in his official capacity purported to cause said real estate to be advertised for sale for the payment of taxes alleged to be delinquent for the years 1934, 35, 36, 37 and 38, in the total of $125.10, and that in pursuance of such notice * * *, the said Vernon McPherson did on the 10th day of November, 1939, purport to sell said real estate to the plaintiff, John Heagerty, and executed and delivered to said plaintiff, John Heagerty, a tax deed for same for the bid and sale price of the sum of Ten Dollars, the said Vernon McPherson acting in his official capacity as collector of Lawrence County. * * * that the claim of title to the lands described in plaintiff's petition is adverse and prejudicial to the title and interest of defendant and is a cloud upon the title of defendant. * * * that said collector's tax deed is illegal and invalid and no right, title and interest in said real estate was legally or equitably conveyed to plaintiff; that said sale and conveyance was illegal and invalid for the following reasons:

"4. * * * the notice of publication as aforesaid was so vague and indefinite in that the Section, Township and Range of the description of said real estate was not given or stated, and the legal subdivision thereof was not stated, so that the said pretended notice did not in fact give notice to defendant or to the public of the real estate to be sold * * *

"5. That contrary to * * * Section 11127 of the Revised Statutes of 1939 Mo. R.S.A. * * * the said collector undertook to and did offer for sale three separate and distinct tracts all together and did sell same as one tract, instead of offering for sale each subdivision thereof and pretended to sell far in excess of the amount of said real estate necessary and proper to satisfy all of said taxes, interest, penalty and the cost of sale thereof. * * *

"7. * * * that at the time of such pretended sale and at all times subsequent thereto said lands of plaintiff with the improvements thereon were reasonably worth the sum of Twelve Hundred Dollars, but notwithstanding such valuation said lands * * * were stricken off and sold to said plaintiff for the sum of Ten ($10.00) Dollars; * * * such sale * * * is and was a fraud on the defendant and should not in equity and good conscience be permitted to stand.

"8. Defendant further states that he now stands willing and ready and offers to refund to said plaintiff herein, cost of purchase and all taxes paid by the plaintiff together with interest thereon and costs thereof as provided by law * * *"

Defendant prays the court to cancel and set aside the collector's deed; to try, ascertain and determine the title; "to adjudge, determine, settle, quiet and define the respective rights, titles, interest and estates of defendant and plaintiff to said real property"; and that the court enter a decree adjudging that a fee simple title in the property is vested in defendant subject to a refund of the taxes paid by plaintiff and interest thereon, as provided in Section 11179, supra.

By reply plaintiff alleges:

"* * * that heretofore the defendant, H. K. Hawkins, filed in the Circuit Court of Lawrence County, Missouri, a petition against the plaintiff herein, John Heagerty, in which petition the said H. K. Hawkins sought to have a tax deed made to the said John Heagerty, declared null and void, and for other equitable relief, on account the matters and things alleged in defendant's answer herein. That the said John Heagerty filed his answer to said petition, and a trial was had and held in said circuit court on the merits, and the court, in said cause rendered a judgment declaring that the said H. K. Hawkins had no right, title or interest in or to the real estate involved herein, but that the said John Heagerty was the owner thereof; that the said H. K. Hawkins appealed said cause from said final judgment to the Supreme Court of Missouri; that the Supreme Court of Missouri by it's decision and mandate affirmed said judgment.

"Plaintiff states that said final judgment is conclusive on the parties to this cause, and that defendant, H. K. Hawkins, is precluded and barred and estopped from asserting the allegations of new matter in his said answer contained."

The plaintiff in the trial of the instant case introduced into evidence a warranty deed under date of January 20, 1931, conveying the real property to defendant; the collector's deed under date of November 15, 1939, conveying the land to plaintiff; and the record of the former case, Hawkins v. Heagerty, 348 Mo. 914, 156 S.W.2d 642. In that case, a suit to set aside the same collector's deed on the same property, as involved in the case at bar, the plaintiff (defendant-appellant herein) relied on three grounds to set aside the deed, viz.: "(1) That the description of the lots in the published list of delinquent lands was insufficient to support the sale and collector's deed; (2) that the lots were sold on a grossly inadequate bid; (3) that they were sold together and not separately; * * *." 348 Mo. at page 915, 156 S.W.2d at page 643.

It was shown that the former case was pending in the January term, 1940, of the circuit court of Lawrence County. The answer of the defendant in that case (plaintiff-respondent herein) admitted the purchase of the property for the sum of ten dollars and that the county collector executed and delivered the deed to defendant. The answer further pleaded:

"The defendant denies each and every other allegation in said petition contained. The defendant further states that subsequent to said sale, he has expended the sum of Twenty-four Dollars for county and state taxes on said premises and has paid said sum of Twenty-four Dollars to the Collector of Revenue for said Lawrence County, Missouri.

"That in the event said tax sale is set aside and for naught held the defendant is entitled to be subrogated to the State's lien for taxes by him so paid, plus all penalties and interest thereon, and to be subrogated in equity and good conscience for the amount by him expended.

"Wherefore, having fully answered the defendant prays the court to order and adjudge and decree that he is the owner of the fee simple title to said real estate and that the defendant has no right, title, or interest herein, and for such other and further relief as the Court may deem meet and just in the premises."

The following judgment was rendered by the trial court in the former case:

"Now at this day this cause comes on for trial * * *, and the Court, after hearing the evidence adduced and the argument of counsel, finds the issues for the defendant, and that defendant owns the title to said real estate, and that plaintiff has no right, title or interest therein.

"Wherefore, it is ordered, adjudged and decreed by the Court that the plaintiff's bill in equity be, and the same is hereby dismissed; that the defendant is the owner of the fee simple title to the real estate described in said petition; that the plaintiff has no right, title, or interest therein; that the tax deed made by the Collector of Revenue for Lawrence County, Missouri, is hereby confirmed, and that the defendant recover of and from the plaintiff the costs hereof for which execution may issue."

Upon appeal, thereafter duly perfected to this court, the judgment of the circuit court of Lawrence County was affirmed, December 12, 1941. Hawkins v. Heagerty, supra.

It was the testimony of plaintiff in the trial of the instant case that he acquired the tax deed, paying $10 purchase price, but had never been in possession of the property; that he was defendant in the case, Hawkins v. Heagerty, supra, and that H. K. Hawkins, defendant herein, was plaintiff in that cause; that he had demanded of defendant the possession of the property, but possession had been refused; and...