Hunott v. Critchlow

• Decision Date: 14 November 1955
• Docket Number: No. 44437,No. 2,44437,2
• Citation: 365 Mo. 600,285 S.W.2d 594
• Parties: Philip HUNOTT, Clarence V. Hunott, Mildred Bledsoe Sheeter and marie Bledsoe Winget, Appellants, v. C. A. CRITCHLOW and Ruth Critchlow, His Wife; William W. Depro and Beatrice Dorothy Depro, His Wife; Thomas C. Romines and Sylvia Maxine Romines, His Wife; William A. Gemeinhardt and Della Gemeinhardt, His Wife; and Metropolitan St. Louis Company, a Corporation, Respondents, Jackson DAVIS and Virginia B. Davis, His Wife, Third-Party Defendants
• Court: Missouri Supreme Court

Page 594

285 S.W.2d 594

365 Mo. 600

Philip HUNOTT, Clarence V. Hunott, Mildred Bledsoe Sheeter and marie Bledsoe Winget, Appellants, v. C. A. CRITCHLOW and Ruth Critchlow, His Wife; William W Depro and Beatrice Dorothy Depro, His Wife; Thomas C Romines and Sylvia Maxine Romines, His Wife; William A Gemeinhardt and Della Gemeinhardt, His Wife; and Metropolitan St. Louis Company, a Corporation, Respondents Jackson DAVIS and Virginia B. Davis, His Wife, Third-Party Defendants.

No. 44437.

Supreme Court of Missouri, Division No. 2.

Nov. 14, 1955.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 9, 1956.

Frederick E. Steck, Chaffee, Oliver & Oliver, Cape Girardeau, for appellants.

Barton & Arnold, Benton, Oliver F. Erbs, St. Louis, for Metropolitan St. Louis Co.

Blanton & Blanton, Sikeston, for respondents and third-party plaintiffs.

Merrill Spitler, New Madrid, for third-party defendants.

BOHLING, Commissioner.

This suit was filed June 2, 1953, to determine title to adjoining Lots 1 and 4, Matthews Second Addition, Town of Matthews, New Madrid county, Missouri, against the claimants of separate portions (four) thereof and the holder of a deed of trust on one of said portions; and also four counts in ejectment for possession. We refer to the parties as plaintiffs and defendants. The defendants pleaded affirmative defenses to plaintiffs' claim, and also counterclaimed to quiet title to the portions respectively held by each. They filed a thirdparty claim against Jackson Davis and Virginia B. Davis, his wife, on warranties in deeds in their chain of title. The answer of the third-party defendants adopted, by reference, the answer of the original defendants as well as their said counterclaim. The answer of the owner of the deed of trust presented like issues. Plaintiffs filed a reply. The plaintiffs claim as heirs of a homesteader, as remaindermen without right of possession until the termination of a life estate in 1950. Briefly stated, defendants claim title under tax sales, followed by warranty deeds; adverse possession; and action to quiet title; and plead limitations, laches and estoppel, in defense, and if plaintiffs have title ask, in the alternative, that defendants be reimbursed for the taxes and the increased value of the land accruing from improvements made after the tax sales, and that the third-party defendants be held on the warranty in their several deeds. A change of venue was granted to Scott county. The trial court, after taking the submission under advisement, made a general finding in favor of all defendants and entered judgment accordingly, the effect of which was to adjudge and decree that the interested defendants were the owners in fee simple of their respective portions of said Lots 1 and 4; that plaintiffs had no interests therein; and that the deed of trust was a valid lien against the portion of said lots therein described. The plaintiffs appealed.

Louis Hunott, the common source of title, acquired title to Lots 1 and 4 under the name of 'Louis Hunot' by warranty deed on October 29, 1910. He was twice married, having three children by his first wife and none by his second wife. His first wife died in 1912. Margaret Owings, the widow of John Owings, had two children, W. G. (Gobel) and Irene Owings. Mr. Hunott and Mrs. Owings were married in 1914 and resided on the lots, where he died intestate September 20, 1922.

Margaret Hunott, the widow, continued to live on Lots 1 and 4 after Mr. Hunott's death. There was testimony that about 1936 or 1937 she went to Tyler, Texas, to make her home with her daughter, Mrs. Irene Wood, where she died October 15, 1950; but defendant Critchlow testified she returned and lived on the property for a time after 1939.

Plaintiffs, with the date of their birth and relationship to Louis Hunott, are: Clarence V. Hunott, son, born January 17, 1900. Mildred Bledsoe Sheeter, granddaughter, born October 28, 1914, and Marie Bledsoe Winget, granddaughter, born March 16, 1913, daughters of Mrs. Clara Hunott Bledsoe, who died December 18, 1916. Philip Hunott, grandson, born April 30, 1921, the son of Louis Alfred Hunott, who died July 12, 1934. We understand Louis Alfred Hunott died intestate.

The two lots were sold for taxes under the Jones-Munger law, Laws 1933, p. 425 V.A.M.S. Sec. 140.010 et seq. Lot 4 was sold for delinquent taxes for the years 1928 to 1933, inclusive, and a tax deed, dated December 3, 1938, and recorded December 7, 1938, conveyed the title to W. G. Owings, the son of Margaret Owings. Lot 1 was sold for delinquent taxes for the years 1932 to 1936, inclusive, and a tax deed, dated and recorded November 28, 1939, conveyed the title to Lot 1 to 'Margaret Owings.'

Upon the probating of Margaret Hunott's will it was disclosed that Margaret Owings was Margaret Hunott. The will was signed Margaret Hunott, but it was captioned: 'Last Will and Testament of Margaret Hunott (also known as Margaret Owings)'; and recited: 'I, Margaret Hunott, also known as Margaret Owings, * * * do * * *.' There was testimony that after the death of Louis Hunott his widow sometimes used the name Margaret Owings.

By separate warranty deeds dated July 12, 1943, W. G. Owings conveyed Lot 4 and Margaret Owings conveyed Lot 1 to Jackson Davis. Mr. Davis testified he knew Margaret Owings but did not know she was Louis Hunott's widow. The two deeds were recorded August 5, 1943. Mr. Davis paid $1,800 for the two lots.

Lots 1 and 4 extend in a generally eastwest direction, Lot 1 being immediately north of Lot 4. Lot 1 is a quadrilateral, 231.6 feet north and south, with its north line fronting 396 feet on a street. Lot 4, in the form of a triangle, has its apex at the southeast corner of Lot 1 and an alley, extends westwardly 405 feet along the alley, and has a base of 70 feet. The dividing line between the two lots is 407.2 feet in length. The title of defendants to different portions of said lots emanated from Jackson Davis and wife under warranty deeds. The property lines of the following defendants extend north and south from the street line on Lot 1 to the alley line on Lot 4. To defendants William A. Gemeinhardt and wife, the east 80 feet of the two lots. To defendants Thomas C. Romines and wife, the 140 feet immediately west of said 80 feet. To defendants C. A. Critchlow and wife, the west 176 feet of the two lots. Defendants Critchlow, who own the land immediately west, deeded the west (approximately) 93 of said 176 feet by 147 feet deep to defendants William W. Depro and wife, the west line being slightly beyond the west line of Lot 1.

Defendant Metropolitan St. Louis Company, a corporation, made two loans to defendants Romines, secured by recorded deeds of trust on said defendants' portion of Lots 1 and 4, on the strength of the record title. The loans were made October 8, 1946. One deed of trust secured an indebtedness of $4,000, and the other secured an indebtedness of $1,000. At the time of trial, the $4,000 loan had been paid but the deed of trust had not been released of record; and there was a balance of $686.68, principal amount, unpaid on the $1,000 loan.

Jackson Davis, on September 24, 1945, filed an action in the Circuit Court of New Madrid county to quiet the title to said Lots 1 and 4 against Margaret Hunott, Louis Alfred Hunott, Clarence Virgil Hunott, Marie Bledsoe and Mildred Bledsoe, if living, and if dead, their consorts, heirs, devisees, alienees, or immediate, mesne, or remote, voluntary, or involuntary grantees. Notice of the commencement of the action was published in the Southeast Missouri News, of Lilbourn, Mo., a weekly newspaper of general circulation in the county. The affidavit for publication was executed by Ralph E. Bailey, attorney for said plaintiff, and stated 'that service cannot be had on the defendants in the manner prescribed by Section 27, page 366 of the Laws of Missouri for 1943 [Section 506.150 RSMo 1949, V.A.M.S.], because the plaintiff does not know whether the defendants are living or dead and does not know their last Post Office addresses.' The judgment, entered December 17, 1945, adjudged the fee simple title to said lots in Jackson Davis, plaintiff. The instant plaintiffs, among other things, say the court never obtained jurisdiction over any of the defendants named in said suit, contending the attempted service by publication was void because the application failed to 'show why service cannot be had in the manner prescribed in section 27' as required by Laws 1943, p. 367, Sec. 28(b), and that said judgment is open to collateral attack whenever and wherever it comes in the way; citing, among others, Hankins v. Smarr, 345 Mo. 973, 137 S.W.2d 499, 501; Abernathy by Shepard v. Missouri P. R. Co., 287 Mo. 30, 228 S.W. 486, 487; Orrick v. Orrick, Mo.App., 233 S.W.2d 826, 829; Haake v. Union Bk. & Trs. Co., Mo.App., 54 S.W.2d 459, 463[12-15].

The evidence established that improvements by defendants or their predecessors in title had enhanced the value of the respective portions of Lots 1 and 4 as follows; Defendants Critchlow, who had rehabilitated the dwelling house, approximately $4,000. Defendants Romines, on whose portion a home and other improvements had been made, approximately $9,000. Defendants Depro, who constructed a home on their portion, $18,000 to $20,000. Defendants Gemeinhardt, $364. The taxes on their respective portions were paid. The record establishes no increase in the value of Lots 1 and 4 since 1922 other than that resulting from the improvements placed thereon by the respective defendants or their grantors.

The testimony established that Philip Hunott talked to Mr. Critchlow and Mr. Gemeinhardt the latter part of 1952, perhaps November, stating he came to see about the chances of plaintiffs to secure a part of the property, and that each informed him they thought the matter had been settled in court. Mr. Critchlow is Mrs. Depro's father and the Depros built their home...