Horrigan v. Wellmuth

• Decision Date: 30 April 1883
• Citation: 77 Mo. 542
• Parties: HORRIGAN, Appellant, v. WELLMUTH.
• Court: Missouri Supreme Court

77 Mo. 542

HORRIGAN, Appellant,

v.WELLMUTH.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Buchanan Circuit Court--HON. JOS. P. GRUBB, Judge.

REVERSED.

Thos. F. Ryan and Vinton Pike for appellant.

Ewing & Hough and E. C. Zimmerman for respondents.

HOUGH, C. J.

The petition in this case is as follows: “Plaintiff, for his amended petition herein, states that defendants Cecile and William Wellmuth are husband and wife; that for ten years last passed the said Cecile Wellmuth has been and now is seized and possessed of the following described lots or parcels of land in Buchanan county, State of Missouri, viz: the north half of lot 4, in block 55, in the original town of St. Joseph, and being so seized and possessed of said lot, did, together with her husband and by her certain deed, duly and legally executed and acknowledged, on the -- day of ____, 187-, convey the said lot to one James Horrigan, in trust for the purpose of securing payment of Cecile and William's certain promissory note of even date with said deed of trust, and which was due and payable in one year from its date, and in and by which the said Cecile and William promised to pay plaintiff the sum of $____, with ten per cent interest from date; that said note was not paid at maturity, and remained unpaid and due plaintiff until the 19th day of December, 1877, when the amount thereof was tendered to and paid plaintiff by defendants, Cecile and William; that while plaintiff held said note and deed of trust, executed by said Wellmuths, as aforesaid, and before that time the defendants Wellmuths failed to pay the just and legal taxes duly and legally assessed and charged to said property by the State, county and city, as hereinafter set forth; that on and prior to the 22nd day of August, 1877, there were assessed and charged to said lot by the State and county, which were then a valid and subsisting lien upon said lot, the following taxes: For the year 1869, $10.88; for the year 1870, $14.10; for the year 1871, $11.10; for the year 1872, $15.12; for the year 1873, $12.68; for the year 1874, $18.53; for the year 1875, $13.65; and for the year 1876, $10.00; which said sums include interest and costs prior to January 1st, 1877, and amount to $106.06, to which must be added interest and costs to date of payment hereinafter stated, which is $13.59, making a total of $119.65; that on and prior to the 21st day of August, 1877, there were due from defendants to the city of St. Joseph the following taxes, duly and legally assessed and chargeable against said lot, to-wit: For the year 1867, $49.43; for the year 1870, $30.41; for the year 1871, $56.49; for the year 1872, $38.83; for the year 1873, $30.67; for the year 1874, $28.43; for the year 1875, $30.10; for the year 1876, $20.39; making a total of $283.75, and which includes penalties and costs and interest to date of payment. The plaintiff further says that the defendant wholly failed and refused to pay any and all of said taxes, and that the same were duly returned delinquent by the collector of the city of St. Joseph, and the collector of the county of Buchanan, respectively, and judgment according to law was rendered against said property by the city recorder of said city and the county court respectively, and that the plaintiff, in order to preserve his security, was compelled to and did pay said taxes, and received the receipts of the respective collectors and treasurers therefor; that said plaintiff paid in all the sum of $402.40, and is justly entitled to have the same charged upon and paid out of the property aforesaid; that defendants are wholly insolvent. Wherefore plaintiff prays judgment against the defendants for said sum of $402.40, with...