Jacobs v. Waldron

• Decision Date: 16 September 1927
• Docket Number: 25940
• Citation: 298 S.W. 773,317 Mo. 1133
• Parties: M. Jacobs, Appellant, v. Robert Waldron
• Court: Missouri Supreme Court

298 S.W. 773

317 Mo. 1133

M. Jacobs, Appellant, v. Robert Waldron

No. 25940

Supreme Court of Missouri

September 16, 1927

Motion for Rehearing Overruled October 10, 1927.

Appeal from Jackson Circuit Court; Hon. Thad B. Landon Judge.

Reversed and remanded (with directions).

Roland Hughes for appellant.

(1) The right to redeem from a tax sale is purely statutory, and must be exercised within the time and in the manner provided by statute. 37 Cyc. 1381; Lincoln v. Ry. Co., 75 Neb 523; Carley v. Bonner, 70 Neb. 674; Logan County v. McKinley, 70 Neb. 406; Stogsdell v. Evans, 53 Mo.App. 663. (2) If the owner of land has failed to exercise his right of redemption within the statutory period a bill in equity will not lie to effect a redemption unless expressly authorized by statute, or unless there are in the case such circumstances of fraud, accident or mistake, as to bring it under a recognized head of equity jurisdiction. 37 Cyc. 1419; Craig v. Flannigan, 21 Ark. 319; Gladwin v. French, 112 Mass. 186; Culver v. Watson, 28 N.J.Eq. 548; Kahn v. Thorp, 43 Wash. 463; Converse v. Brown, 200 Ill. 166; Clark v. Lancy, 178 Mass. 460; Weidersum v. Bender, 172 Mass. 436. (3) The court erred in treating defendant's amended answer as a bill in equity to redeem under the charter. It contains none of the elements of a bill in equity. There was no allegation or proof of any facts giving an equitable right to redeem. The only proof was of the deposit with the clerk. (4) Sec. 43, Art. V, of the Charter is a "short statute of limitation" and does not extend the period of time in which the owner of lot has a right to redeem; but limits the time in which he may bring an action upon some equitable ground to set aside the sale and tax deed, after the filing of the tax deed for record. Bird v. Sellers, 122 Mo. 32; Allen v. White, 98 Mo. 55; Callahan v. Davis, 90 Mo. 78, 125 Mo. 36; Hill v. Atterbury, 88 Mo. 114; Mason v. Crowder, 85 Mo. 526; Merriweather v. Overly, 228 Mo. 233.

G. W. Stubbs and C. A. Capron for respondent.

(1) The object of this statute (Sec. 1970, R. S. 1919) is to give a right of action to any person claiming an estate in lands, and permit a defendant to set up as many defenses as he may have. Talbert v. Grist, 198 Mo.App. 499. (2) If the issues joined entitled the parties to an ordinary judgment at law the cause of action may be submitted to a jury, but if the issues are equitable the cause is triable by the court. Lee v. Conran, 213 Mo. 404; Hauser v. Murray, 256 Mo. 84; Toler v. Edwards, 249 Mo. 159. (3) Prior to the amendment of 1909 the court was to ascertain, define and adjudge the title, interest and estate of the parties severally, but now the courts can give full relief. Powell v. Crow, 204 Mo. 481. (4) It is the duty of the court in an action under this statute to ascertain and determine the estate, title and interest of the parties to the suit and to render a judgment accordingly. Richards v. Mining Co., 221 Mo. 149. (5) In an action under this section, which is tried by the court without a jury and without instructions, the finding of fact by the court, if supported by any evidence, is conclusive on appeal. Dowd v. Bond, 199 S.W. 954. (6) It was the duty of the City Auditor upon the application of the respondent through his attorney to furnish him a statement setting forth the amount required to redeem the property, and the duty of the City Treasurer upon the offer to redeem to accept the amount and to issue a certificate of redemption from the tax sale. Sec. 7724, R. S. 1919; Sec. 35, Art. V, Charter of Kansas City 1909. (7) To defeat the tax deed and sustain the respondent's title to his property it was only necessary to show an offer to redeem prior to the issuance of the tax deed. Sec. 7733, R. S. 1919; Sec. 41, Art. V, Charter.

OPINION

Gantt, J.

This is a suit to ascertain and determine the title to lots 17 and 18 in Block 6 in Oakland Addition to Kansas City.

The court found defendant Robert Waldron to be the owner of the lots in fee simple, canceled the tax deed conveying to plaintiff the lots, ordered the circuit clerk to pay to plaintiff the money deposited with the clerk by defendant Waldron to repay plaintiff for money expended in purchasing the lots, together with interest and penalties, and decreed the title quieted in defendant Robert Waldron, and against plaintiff, M. Jacobs, and any and all persons holding by, through or under him. Plaintiff appealed.

The petition is in the usual form. The answer of defendants Clark and Wilson is as follows:

"Come now the above-named defendants, A. M. Clark and John T. Wilson, and state to the court that they do not have sufficient knowledge of this matter with which to form an answer and ask that the plaintiff be put on strict proof herein. Wherefore, having fully answered ask to be discharged with their costs."

Defendant Steiner made default.

The amended answer of defendant Robert Waldron is as follows:

"Comes now the above-named Robert Waldron, one of the above-named defendants, and for his amended answer, leave of court having first been had, and in behalf of all of the defendants, denies each and every allegation in plaintiff's said petition contained, and further answering, and by way of affirmative relief, states that said Robert Waldron is the owner of lots 17 and 18, Block 6, Oakland, an addition to Kansas City, Jackson County, Missouri, and has been the owner under a warranty deed made and properly filed since the 28th day of March, 1908, and in continuous possession thereof.

"This defendant further says that on the 6th day of December, 1921, the city of Kansas City, Missouri, issued a tax deed to this plaintiff, which said deed was duly recorded on December 31, 1921, and recorded in Book B. 1478, on page 595.

"This defendant further states that prior to the issuing of said tax deed, and on or about December 1, 1921, he tendered to the City Treasurer of Kansas City, Missouri, the amount due thereunder with all interest and penalties, as provided by statute, and demanded a redemption certificate for said above-described property for taxes of 1916, but that said redemption certificate was refused.

"This defendant further says that within three years from the date of the recording of said tax deed he has deposited with the Clerk of the Circuit Court of Jackson County, Missouri, at Kansas City, a sum sufficient to repay the holder of said tax deed, together with all interest and penalties, or those claiming under or through him, and that said redemption was had, or attempted to be had, for the use and benefit of this defendant, who is the owner and in possession of the above-described property.

"Wherefore, this defendant prays the court will determine, ascertain and try the interest, estate and title of the said plaintiff and defendants of, to and in the said real estate heretofore described, and by its decree to adjudge and determine the title to said property and to define the rights, title and estate of plaintiff and defendants in and to said above-described real property; and if the court finds that this defendant is the owner of said property above described, then an order and decree be entered of record forever barring the said plaintiff, or those holding through, by or under him, as well as all other persons who may or might claim through or under this plaintiff, from hereafter setting up or claiming any right, title or interest to the above-described property, and for such other and further relief as to the court may seem meet and just."

The reply was in effect a general denial.

Defendants Clark, Wilson and Steiner make no claim to the land. The ownership of the lots is to be determined as between appellant Jacobs and respondent Waldron. Appellant Jacobs claims ownership by virtue of a tax deed, executed and delivered to him by Kansas City through its city treasurer on the 6th of December, 1921, and filed for record on the 13th of December, 1921. Respondent Waldron claims ownership by virtue of a warranty deed of the 28th of March, 1908, and argues the tax deed should be canceled, for the reason that (as alleged in his answer) "prior to the issuing of the tax deed and on or about December 1, 1921, he tendered to the City Treasurer of Kansas City the amount due thereunder with all interest and penalties, as provided by statute, and demanded a redemption certificate for said above-described property for taxes for 1916, but that said redemption was refused;" and for the further reason that he deposited with the circuit clerk a sum of money sufficient to repay appellant for the money paid at the tax sale for the lots, together with all interest and penalties.

In Section 1970, Revised Statutes 1919, it is provided that upon trial of a cause to determine title if the same be asked for in the pleadings of either party, the court may finally determine the rights of the parties and award full relief, whether legal or equitable. In addition, we have ruled that the action is at law or in equity according to the issues tendered by the pleadings. [Lee v. Conran, 213 Mo. l. c. 411, 111 S.W. 1151; Williamson v. Frazee, 294 Mo. l. c. 329, 242 S.W. 958; Thompson v. Stilwell, 253 Mo. l. c. 94, 161 S.W. 681; Strother v. Kansas City, 283 Mo. l. c. 283, 223 S.W. 419; Schneider v. Schneider, 284 Mo. l. c. 322, 224 S.W. 1; Barron v. Store Co., 292 Mo. l. c. 211, 237 S.W. 786; Stewart v. Stewart, 262 S.W. 1016; Sorrell v. Bradshaw, 222 S.W. 1026; Hayes v. McLaughlin, 217 S.W. l. c. 264.]

It isn't sufficient to plead an equitable defense, but there must be a prayer for affirmative relief, based on such defense before the action is converted into one in equity. [Citizens Trust Co. v. Going, 288 Mo. l. c. 511, and cases cited, 232 S.W. 996.]...