Jacobs v. Waldron

• Citation: 298 S.W. 773
• Decision Date: 16 September 1927
• Docket Number: No. 25940.,25940.
• Parties: JACOBS v. WALDROM.
• Court: United States State Supreme Court of Missouri

298 S.W. 773

JACOBS v. WALDROM.

No. 25940.

Supreme Court of Missouri, Division No. 1.

September 16, 1927.

Motion for Rehearing Overruled October 10, 1927.

Appeal from Circuit Court, Jackson County; Thad B. Landon, Judge.

Suit to ascertain and determine title by M. Jacobs against Robert Waldron and others. Judgment for defendant named, and plaintiff' appeals. Reversed and remanded, with directions.

Roland Hughes, of Punta Gorda, Fla., for appellant.

G. W. Stubbs and C. A. Capron, both of Kansas City, for respondent.

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, Mo., 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, Mo., 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, Mo., 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, Mo., 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, far 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, R. S. 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. loc. cit. 411, 111 S. W. 1151; Williamson v. Frazee, 294 Mo. loc. cit. 329, 242 S. W. 958; Thompson v. Stilwell, 253 Mo. loc. cit. 94, 161 S. W. 681; Strother v. Kansas City, 283 Mo. loc. cit. 283, 223 S. W. 419; Schneider v. Schneider, 284 Mo. loc. cit. 322, 224 S. W. 1; Barron v. Store Co., 292 Mo. loc. cit. 211, 237 S. W. 786; Stewart v. Stewart (Mo. Sup.) 262 S. W. 1016; Sorrell v. Bradshaw (Mo. Sup.) 222 S. W. 1026; Hayes v. McLaughlin (Me. Sup.) 217 S. W. loc. cit. 264.

It is not 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. loc. cit. 511, 232 B. W. 996, and cases cited.

In the instant case the answer contains no special prayer for relief. The court is not asked to cancel the deed. However, there is a prayer for general relief. The writer is of the opinion that a prayer for general relief is not sufficient in this case to convert the case into an action in equity. Whitehouse, Equity Practice, vol. 1, p. 220; Koehler v. Rowland, 275 Mo. loc. cit. 581, 582, 205 S. W. 217, 9 A. L. R. 107. But assuming that the case is an action in equity, we will proceed to consider the only evidence in support of the allegation that a tender was made to the city treasurer, which is as follows:

"My name is C. A. Capron. I represented Mr. Waldron and the other defendants in this action along the latter part of November, 1921. "Mr. Young: If the court please—.

"Mr. Capron (continuing): It was a day or two days before Thanksgiving, and Mr. Waldron talked to me about the taxes unpaid on that property.

"Mr. Young: If the court please, I want to make an objection.

"Q. (continuing) As the day—

"The Court (interrupting): Wait a minute, Mr. Capron.

"Mr. Young: I want to object to this testifying to anything prior to the filing of this suit unless agency is first proven. He can't prove agency by himself.

"The Court: Well, that is true, but I can't tell very well until I see what he testifies to. "Mr. Capron: I am testifying now because Mr. Waldron isn't here, and I am hastening the time.

"Mr. Young: He is testifying to a matter that happened prior to the issuing of this tax deed.

"The Court: Well, I don't know what he is going to say, whether it would be competent or not. Go ahead and let us see. (To which action of the court, plaintiff then and there' duly excepted, and still excepts.)

"Q. (continuing) Could you tell what I said last? (The last statement of Mr. Capron read) To go and redeem this property for him. He gave me the money.

"Mr. Young: If the court please, I object to that statement.

"The Court: Overruled. (To which action of the court, plaintiff then and there duly accepted, and still excepts.) "Mr. Capron (continuing): I went to the city hall the Monday following, as I remember, Thanksgiving, in 1921, and I had about $50 of Waldron's money to redeem old taxes, and was informed that they had requested—that the holder of the certificate requested deed and that they could not give me a redemption certificate; that after the deed was issued and put on record, I would have to go into court to redeem that, but that the other taxes could be redeemed.

"Mr. Young: With whom did you have that conversation?

"Mr. Capron: Somebody at the counter; I don't know.

"Cross-Examination by Mr. Young.

"Q. You don't know whether a county official or a stranger do you? A. Yes, it was a county official.

"Q. Which county official? A. I don't know the names of a city official down there.

"Q. In the city auditor's office or the city treasurer's office? A. It was a big place in the southeast side of the cage where you pay your taxes, where there is a big open place. I suppose that is the auditor's office.

"Q. When you first went down to that counter, what did you do? A. I told them that wanted to—

"Q. (interrupting) Wait a minute, Mr. Capron. You know what you...