Johnson v. McAboy

• Decision Date: 06 April 1943
• Docket Number: 38320
• Citation: 169 S.W.2d 932,350 Mo. 1086
• Parties: E. W. Johnson, Defendant in Error, v. Roy McAboy and Emma Morgan, Plaintiffs in Error
• Court: Missouri Supreme Court

169 S.W.2d 932

350 Mo. 1086

E. W. Johnson, Defendant in Error, v. Roy McAboy and Emma Morgan, Plaintiffs in Error

No. 38320

Supreme Court of Missouri

April 6, 1943

Writ of Error to Jasper Circuit Court; Hon. Chas. M Grayston, Judge.

Reversed and remanded (with directions).

R A. Pearson for plaintiffs in error.

(1) The taxpayer is entitled to rely upon information as to his taxes given him by the collector's office on purposeful inquiry. Harness v. Cravens, 126 Mo. l. c. 254; Lindsay v. City, 139 S.W.2d l. c. 909; Mangold v. Bacon, 237 Mo. l. c. 518. (2) Inadequacy of consideration when joined with accident, mistake, surprise irregularity or injustice, is favored grounds for the remedial office of equity, and inadequacy alone if gross and unconscionable is regarded as a fraud against the property owner. State v. Jones, 137 Mo.App. 420; Black v. Banks, 37 S.W.2d l. c. 598; Queen City v. Kreider, 31 S.W.2d l. c. 1005; State v. Sanders, 30 S.W.2d l. c. 988; State v. Nathan, 229 S.W. 176; Daggett v. Brownlee, 186 Mo. 621; Cole County v. Madden, 91 Mo. 585.

Emerson Foulke for defendant in error.

(1) This is an action in equity because of the affirmative relief on equitable grounds prayed for in the answer. Rains v. Moulder, 90 S.W.2d 81. (2) Plaintiff made out a prima facie case in the lower court by introduction of his tax deed and the records of the tax sale proceedings. Delta Realty Co. v. Hunter, 152 S.W.2d 45. (3) Defendants praying relief on their crossbill and asking that title be quieted in them, must stand or fall on the strength of their own title. Senter v. Wisconsin Lumber Co., 164 S.W. 501. (4) Defendants' evidence is insufficient to show title in them. This is not a case where both claim from a common source of title. Plaintiff's conveyance under the Jones-Munger Law, if valid, is from the State of Missouri and the ownership is, under this law, immaterial. There being no common source of title, the defendants asserting their title, must prove it, and have failed to do so. Akins v. Adams, 164 S.W. 603. (5) The showing of inadequacy of consideration in this case is not sufficient to justify setting aside plaintiff's deed on that ground alone. Brown v. Chaney, 165 S.W. 335; Mangold v. Bacon, 141 S.W. 650; Bussen Realty Co. v. Benson, 159 S.W.2d 813.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action at law to quiet title and in ejectment for described lands in Jasper County. The two counts are in usual form under Sec. 1684, R. S. 1939, and Sec. 1534, R. S. 1939, respectively. Plaintiff prayed damages in the sum of $ 50 for withholding possession of the described lands and $ 10 per month as the monthly value of rents and profits, until possession be delivered.

Defendants answered with a general denial and a cross petition in equity to set aside and cancel a certain tax deed executed by the Collector of Jasper County to plaintiff, dated November 30, 1940. This deed was executed under the Jones-Munger Tax Law. Laws 1933, p. 425, Art. 9, Chap. 74, R. S. 1939, Mo. R. S. A., sec. 11108 et seq. Defendants claimed ownership of the described lands, alleged that plaintiff claimed under the tax deed sought to be set aside, and charged that said deed was void because of gross inadequacy of consideration and other grounds. Defendants prayed the court to quiet title in defendants, subject to a lien, taxes, interest, penalties and costs paid, et cetera, plus 10% thereof, and for other equitable relief. The reply is a general denial.

The court quieted title in plaintiff, awarded plaintiff judgment for possession with no damages, and fixed the value of monthly rents and profits at $ 5.00 per month, until possession be restored to plaintiff. Defendants bring the cause here on writ of error. For convenience we shall refer to the parties as in the original cause.

On November 14, 1938, the described lands were delinquent on the Collector's books for State and County taxes for 1934 to 1937, inclusive, for a total of $ 79.05 (including taxes, interest, penalties and charges). On that date the lands were sold by the collector at public auction to plaintiff for the sum of $ 79.05. A "tax sale certificate of purchase" in regular form was issued. Section 11127 and Sec. 11133, R. S. 1939. Thereafter, plaintiff paid the 1938, 1939 and 1940 taxes assessed against the described lands, and on November 30, 1940, the two year period for redemption having expired, plaintiff obtained a tax deed in due form from the Collector. Section 11149 and Sec. 11150, R. S. 1939. The deed was recorded January 24, 1941.

Defendants claim under a deed from their father dated March 18, 1932, and recorded November 26, 1934. Defendants had been in possession of the described lands from the date of the deed. On April 18, 1940, defendants' sister, as their agent, obtained a written statement from the county collector's office showing taxes, interest, fees, etc., against the described lands as follows: 1937, $ 20.40; 1939, $ 16.60. The statement bore the notation: "If paid on or before April 30, 1940, total amount $ 36.64." When requesting this statement, defendants' agent asked the deputy collector if there had been any tax suits or any sale of the property and she was advised there had been none. On November 18, 1940, defendants' agent obtained a written statement from the collector's office showing taxes on the described lands as follows: 1937, $ 20.98; 1939, $ 17.55; and 1940, $ 14.98. On this occasion defendants' agent inquired of a deputy collector whether there had been any sale of the property and was advised that there had been none. Thereafter, defendants' agent learned that someone was claiming the property and returned to the collector's office and asked the deputy to be pretty sure, because someone was claiming the property as a purchaser. The deputy "looked it up" a second time, found the prior sale (sale November 14, 1938, deed November 30, 1940) and said, "I am sorry there has been a sale on that piece of ground." The Collector (as a witness for plaintiff) testified that apparently this second statement was issued during the month of December, 1940, since it bore the notation, "If paid before December 31, 1940." On March 11, 1941, defendants' agent obtained another written statement from the collector's office of state and county taxes on the described lands as follows: 1938, $ 19.80; 1939, $ 18.17; 1940, $ 16.10, "total amount $ 54.15." On this occasion a deputy collector told her he didn't know the land had been sold at first, "that it didn't show up on the books for a long time." It will be noted that the first two statements omit the 1938 taxes shown on the last statement, but include the 1937 taxes for which the property was sold.

Some of the above evidence appears to have been offered upon the theory that, except for such evidence, the court might refuse relief upon the theory that equity will not relieve a person from the consequences of his own negligence and carelessness. Miller v. St. Louis & K. C. Ry. Co., 162 Mo. 424, 441, 63 S.W. 85; Thompson v. Lindsay, 242 Mo. 53, 76, 145 S.W. 472; Brown v. Fagan, 71 Mo. 563, 568; Klebba v. Struempf, 224 Mo.App. 193, 23 S.W.2d 205, 207. Also, see, Campbell v. Daub, 349 Mo. 153, 159 S.W.2d 683.

The lands in controversy consist of an unimproved forty acre tract near the west city limits of Webb City. Thirty-three acres are tillable, two or three acres are subject to railroad right of way and some land is subject to an easement for road purposes. Defendants' witnesses fixed the value of the property in November, 1938, at from $ 40 to $ 50 per acre. There was also evidence that plaintiff had offered to sell to defendants' agent and to defendants' tenant for $ 1000. The assessed valuation in 1938 was $ 1060 and, according to the assessor, this represented the value of the lands at that time and at the time of the trial. Defendants' agent testified that, upon discovery of the sale to plaintiff, she offered to refund all taxes and expenses to plaintiff and pay a bonus of about $ 300.

Defendants (plaintiffs in error) contend that the judgment is unsupported by the evidence or the law under the evidence; and that the court erred in denying defendants relief in equity in view of the evidence of gross inadequacy of consideration, "joined with mistake, surprise and other equitable features." There are other assignments of error, but, in view of the conclusions we have reached, only the question of gross inadequacy of consideration paid need be considered.

While the original cause was at law, the cross petition stated a cause of action in equity and sought affirmative equitable relief, to wit, the cancellation of the tax deed under which the plaintiff claimed, and the quieting of title in defendants. The cause is, therefore, in equity. Ebbs v. Neff, 325 Mo. 1182, 30 S.W.2d 616, 619; Crawford v. Amusement Syndicate Co. (Mo. Sup.), 37 S.W.2d 581, 584.

A prima facie case "of good and valid title in fee simple" in plaintiff was made out by the tax deed of November 30, 1940. Section 11150, R. S. 1939, Mo. R. S. A., sec. 11150. See, also, Delta Realty Co. v. Hunter, 347 Mo. 1108, 152 S.W.2d 45, 48(1). But plaintiff further contends that he holds title from the State of Missouri, under a proceeding in rem, and without reference to the prior ownership of the lands; that there is no common source of title; that defendants, having asserted title, must prove it and stand or fall on the strength of their own title; that defendants have shown no title; and that the judgment must be affirmed.

In proceedings under Sec. 1684, supra, the court determines "the title, estate and interest of the parties severally in and to such real property" and when requested "may award full and complete relief,...