Hoffman v. Hogan

• Decision Date: 21 February 1940
• Docket Number: 36119
• Citation: 137 S.W.2d 441,345 Mo. 903
• Parties: H. M. Hoffman, Appellant, v. Marguerite Pyatt Hogan et al., Defendants, Marguerite Pyatt Hogan and Monarch Finance Corporation, a Corporation, Appellants
• Court: Missouri Supreme Court

137 S.W.2d 441

345 Mo. 903

H. M. Hoffman, Appellant, v. Marguerite Pyatt Hogan et al., Defendants, Marguerite Pyatt Hogan and Monarch Finance Corporation, a Corporation, Appellants

No. 36119

Supreme Court of Missouri

February 21, 1940

Appeal from Scott Circuit Court; Hon. Frank Kelly, Judge.

Affirmed in part and reversed and remanded (with directions to the trial court as to part.)

Wm M. Fitch and N. C. Hawkins for defendant-appellants.

(1) "The judgment is not such judgment as the law commands should be rendered in such cases, even if the facts as found by the court were all admitted to be true." This assignment was and is directed especially at the following finding: "The court finds the issues for the plaintiff on the count in ejectment, for he is entitled to remain in possession until he is reimbursed for his expenditures conditioned that he surrenders possession to the defendants." The defendants urge this point first and also major on it because as they see it, this was and until annulled will be, the most grievous error of all. Whatever else the court may do, the above finding should be annulled. Howell v. Sherwood, 242 Mo. 546; State v Duff, 253 Mo. 427, 161 S.W. 683. "The legal seizen and possession of the land followed the legal title" adjudged to be in defendant Hogan. Stone v. Perkins, 217 Mo. 599, 117 S.W. 717. "If the court had, as it should have done, awarded" defendant Hogan "A writ of possession, this controversy would have ended." Matthews v. Citizens Bank of Senath, 329 Mo. 563, 46 S.W.2d 163. (a) In the accounting the court had erroneously exempted plaintiff-appellant for any money judgment. By the above finding the court erroneously exempted him from judgment and having to give bond on appeal for the accruing rents and profits and to stay waste, until a judgment of dispossession can be obtained against him and possession under it. (b) The above finding was and is erroneous for many reasons. By Divisions 1, 2, 3, 4 and 5 of the decree the court cancelled and annulled every deed and muniment of title by, through or under which plaintiff did or could claim title and elsewhere (7) in the decree adjudged defendant Hogan was the owner in fee and "plaintiff did not have any right title or interest . . . except an equitable interest of being reimbursed, . . ." The owner or adjudged owner of the legal title has the right of possession, always. "An equitable title or interest will not support a finding in ejectment." Farmers Bank v. Calvin, 292 S.W. 30; Howell v. Sherwood, 242 Mo. 546, 112 S.W. 50. Such finding was inconsistent and contradictory within itself. Its provisions were mutually destructive. He was not entitled to reimbursement for anything, while and so long as he had the right of possession which such finding gave him, or except on the condition that he surrender possession, to be of no effect, if he refused. Anderson v. Sutton, 308 Mo. 406, 275 S.W. 32; Rains v. Moulder, 338 Mo. 288, 90 S.W.2d 81; Secs. 1384, 1385, R. S. 1929. If plaintiff was entitled to reimbursement, in the amount and for the items as found, and was entitled to remain in possession until he was reimbursed, equity and the statutes have provided means, methods and procedure just and harmless to all, to accomplish such result. That is, Find for the owner on the ejectment, with damages and monthly rents and profits until restitution be made, either on "condition" the owner pay the claimant a certain amount within a certain time, or give the claimant a lien on the land to be enforced within a certain time if not paid, or follow the statutes, and if the defeated claimant is willing to abide the decree as to title and right of possession let him through hired counsel ask for such relief and in a proper case enter an order of stay of writ of restitution, until paid. Sec. 1386, R. S. 1929; State ex rel. v. Foard, 251 Mo. 61, 157 S.W. 619. The finding placed plaintiff in control of the enforcement or not of the law and of the decree and of the administration and dispensation of justice. Such finding was unfair. Defendant Hogan in her answer offered to refund the purchase prices with interests, to otherwise do full and complete equity and abide the judgment of the court as to what would be equity. That was all the statutes required. Secs. 9966, 9967, R. S. 1929; Dyer v. Harper, 77 S.W.2d 108, 336 Mo. 52. That was all required by the maxim: "He who seeks equity must do equity." Kline v. Vogel, 90 Mo. 244, 2 S.W. 408; Joplin v. Walton, 138 Mo. 491, 40 S.W. 99; Priest v. Oehler, 41 S.W.2d 783, 328 Mo. 590. The court bound defendant, and made her helpless and refused to allow her to avert the injury, and gave the plaintiff an option and a roving commission to do as he pleased, until some other court, at some other time, would render such judgment as should have been rendered and see that justice was done and the decree enforced. Such finding delayed, "perverted and defeated justice." St. Louis v. Senter Comm. Co., 340 Mo. 683, 102 S.W.2d 110; Joplin v. Walton, 138 Mo. 491. (2) "The court erred in finding and adjudging plaintiff entitled to allowance, credit or compensation, in any sum whatsoever, for improvements." (a) Plaintiff obtained the tax deeds, wrongfully, unlawfully and fraudulently. He obtained them for less than his purported bids and through a private arrangement with the sheriff, for the costs in the cases. In legal effect there were no sales and plaintiff knew such facts. Plaintiff testified he did not remember what he bid at the sales. The sheriff testified he personally made all sales; all returns on executions; that his returns were made in due course and stated the true facts, and "will never be changed." Therefore, the returns on the executions were and are conclusive evidence of the amount of the bids. State ex rel. Beckwith v. Finn, 100 Mo. 429, 13 S.W. 712; Mason v. Perkins, 180 Mo. 707, 79 S.W. 683. The total bid for all tracts was $ 1602. The total cost was $ 311.09, without sheriff's deeds. Plaintiff obtained the deed for the six tracts for $ 175, the price he had bid at the sale for each one of the six, and obtained a deed for the four tracts for $ 138, the price he bid at the sale for each one of the four, and obtained both deeds for $ 313, the costs, when he had bid $ 1602 at the sales. Plaintiff at all times knew such deeds lacked integrity, and did not give him any title or any honest right to believe he had any title under them. In effect there were no sales. Sec. 1203, R. S. 1929; 35 C. J., p. 53, sec. 75A, note 91; Dierks & Sons Lbr. Co. v. Taylor, 46 S.W.2d 247, 226 Mo.App. 746; Smith v. Mount, 149 Mo.App. 674; Nelson v. Brown, 23 Mo. 22; Gray v. Clement, 296 Mo. 514. (b) The tax deeds were void and plaintiff-appellant knew such facts at all times. He was a member of the league. It was organized for the purpose and had the effect to discourage, prevent and destroy free and competitive bidding at drainage tax sales. A fraudulent conspiracy existed to prevent free and competitive bidding, and plaintiff, the alleged purchaser, was a party to and a member of such unlawful and fraudulent conspiracy. Stewart v. Severance, 43 Mo. 334; Hendrix v. Callaway, 211 Mo. 564(a), 111 S.W. 60; Shuch v. Lumber Co., 244 Mo. 370, 148 S.W. 609; Shoe Co. v. Wyble, 261 Mo. 693, 170 S.W. 1128. "A stream cannot rise higher than its source." Gray v. Clement, 296 Mo. 515.

Morrell DeReign and Corbett & Peal for plaintiff-appellant H. M. Hoffman.

The court erred in holding in its judgment and decree that the tax proceedings in cases Nos. 9325 and 9350, were void. The cases were brought by the State of Missouri at the relation of the collector of the revenue of Pemiscot County, Missouri, to the use of Drainage District No. 8, as plaintiff, against Marguerite Pyatt Hogan, J. F. Cox, trustee, and A. W. Schwing, defendants. Marguerite Pyatt Hogan, J. F. Cox, trustee, and A. W. Schwing were the record owners of the land in controversy. Fred Boyer, under whom by mesne conveyances, Marguerite Pyatt Hogan, claimed, had given a deed of trust on the lands in controversy to J. F. Cox, trustee, for A. W. Schwing, to secure Fred Boyer's note for the sum of $ 5000 due five years after date, which note and deed of trust Marguerite Pyatt Hogan became liable for when she received her deed to the property. To be sure that the proper parties were made defendants in the tax proceedings, the abstractor under contract with the county court, the superintendents of Drainage District No. 8, furnished to the drainage district tax attorney the record owners of the land. Sec. 770, R. S. 1929. Section 774 of the statutes provides that when any of the matters enumerated in Section 770, do not appear upon the face of the petition, the objection may be taken by answer, and if no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same excepting only the objections to the jurisdiction of the court over the subject matter of the action, and the objection that the petition does not state facts sufficient to constitute a cause of action. Sec. 774, R. S. 1929; Kerr v. Bell, 44 Mo. 120; Hat Co. v. Holmes, 127 Mo. 392; Railway Co. v. Wear, 135 Mo. 230; Johnson v. Ry. Co., 240 Mo. 357; Rideout v. Burkhardt, 255 Mo. 116; State ex rel. v. Chemical Works, 249 Mo. 702; Baker v. Barry, 37 Mo. 306; Peniston v. Burk Co., 234 Mo. 698; Smith v. Sedalia, 244 Mo. 107; St. Paul & K. C. Ry. Co. v. U.S. Fidelity & G. Co., 105 S.W.2d 20; Webb v. Salisbury, 39 S.W.2d 1045; Wolf v. Schulz Folding Box Co., 44 S.W.2d 869; Boggs v. M., K. & T. Ry. Co., 80 S.W.2d 141; State ex rel. Davidson v. Mo. State Life Ins. Co., 65 S.W.2d 182; State ex rel. City of Maplewood v. So. Surety Co., 19 S.W.2d 691; Waller v. Jones & Roberts, 218 Mo.App. 131.

Westhues C. Cool...