Keaton v. Jorndt

• Decision Date: 23 June 1914
• Docket Number: No. 17086.,17086.
• Citation: 259 Mo. 179,168 S.W. 734
• Parties: KEATON v. JORNDT et al.
• Court: Missouri Supreme Court

168 S.W. 734

259 Mo. 179

KEATON v. JORNDT et al.

No. 17086.

Supreme Court of Missouri, Division No. 2.

June 23, 1914.

1. EVIDENCE (§ 43)—JUDICIAL NOTE—JUDICIAL PROCEEDINGS.

The Supreme Court will take judicial notice of the record of a former appeal in the same case, so far as to notice the existence of the former proceedings, what was done in the premises, the legal relations of the parties and their good faith, and the identity of the subject-matter.

2. APPEAL AND ERROR (§ 1194) — PROCEEDINGS AFTER REMAND — REVERSAL WITH DIRECTIONS.

In an action to determine the title to real estate in which defendants claimed under a tax sale, a judgment for plaintiff was reversed for further proceedings in conformity with the opinion which directed the circuit court to enter judgment for defendants, vesting in them the interests of certain parties to the tax suit and to enter a decree in favor of plaintiff for whatever interest he might have acquired by conveyance in the shares of certain other parties to the tax suit. What the interests of the parties to the tax suit were was not determined by the circuit court, it having held the tax sale wholly void, and was therefore not determined by the Supreme Court. Held, that the circuit court properly determined only what the interests of the parties to the tax suit were at the date of the sheriff's sale and entered judgment accordingly, instead of retrying the whole case; the case falling within the rule as to cases reversed and remanded, with directions, wherein it is the duty of the trial court to do those things, and those things only, which it is directed to do by the mandate contained in the judgment.

3. TAXATION (§ 641) — SUITS FOR TAXES — PARTIES.

Under Rev. St. 1899, § 9303, requiring suits for taxes to be brought against the owner of the land, the collector might bring the suit against the record owner unless he or the purchaser knew that another was the real owner, in which case no title passed unless the real owner was a party.

4. TAXATION (§ 631)—TAX SALES—TITLE ACQUIRED.

While, as between a life tenant and a remainderman, the life tenant is bound to pay the annual taxes, the state has nothing to do with this obligation inter sese, and if the life tenant fails to fulfill this duty, and both parties are properly sued and the land sold, the fee passes under Rev. St. 1909, § 11501, providing that a sheriff's deed on a sale under a judgment for taxes shall convey a title in fee.

5. TAXATION (§ 730)—TAX SALES—TITLE ACQUIRED.

Where a will was not recorded in the county in which land thereby devised was situated, as authorized by Rev. St. 1899, § 4633, and a tax collector and the purchaser of the land at a sale for taxes had no actual notice of the contents of the will, in a suit for taxes against the widow and heirs of the deceased owner as such and not as devisees, the purchaser acquired the widow's life estate in the whole of the land devised to her by the will and not merely her dower right in an undivided one-third which she would have taken as widow if the owner had died intestate; the sale being void as to certain of the other parties, so that the purchaser did not acquire the whole title.

6. TAXATION (§ 730)—TAX SALES—TITLE ACQUIRED.

Where land devised to a testator's wife for life, with power of disposition, was sold for taxes, but the sale was void as to certain of the devisees, the widow could not thereafter, by exercising her power of sale, affect the tax sale on the theory that the sale related back to the probate of the will and converted the title of her grantee into a fee as of that date.

7. TAXATION (§ 730)—TAX SALES—TITLE ACQUIRED.

If a widow to whom land was devised for life, with power of disposition, was in possession when a tax suit was commenced and a sale for taxes had, notice of her title was imputed to the tax collector and the purchaser, and her life estate in the whole land passed to the purchaser, since, she being properly in court, whatever interest she had passed by the tax sale.

Appeal from Circuit Court, Butler County; W. S. C. Walker, Judge.

Action by C. L. Keaton against Emma Jorndt and others. From the judgment, plaintiff appeals. Affirmed.

See, also, 220 Mo. 117, 119 S. W. 629.

This is an action to determine interest under the provisions of section 650, R. S. 1899 (now section 2535, R. S. 1909), in the following described land situated in Stoddard county, Mo., to wit: The northeast quarter, the east half of the southeast quarter, the east half of the northwest quarter, and the east half of the southwest quarter of the southeast quarter of section 4, in township 23, range 12 east.

This is the second appeal to this court in this case. A full report of all the facts, so far as it is necessary to consider them here, will be found in 220 Mo. 117, 119 S. W. 629, to which reference for such facts as are not herein set forth may be made.

In the former appeal the judgment below was for plaintiff, finding him to be the owner in fee of the whole of the land embraced in that action and described above herein. Upon a hearing had in Division 2 of this court, the judgment of the court nisi was reversed, with directions, in the following language:

"The judgment of the circuit court, so far as it affects the title to the interests acquired by the purchaser of the interests and estate of Carrie E. Thurber and Katie A. Viger, is reversed with directions to the circuit court to enter up a judgment for defendants vesting in them the title to the interests and shares of Carrie E. Thurber and Katie A. Viger in said lands acquired by them by virtue of said sheriff's deed under said tax judgment, and to enter a further decree in favor of plaintiff for whatever interest he may have acquired by deeds of conveyance in the shares or interests of Mary A. Lemen and Hattie E. Stone. As to what said several interests in said lands are was not determined by the circuit court, and we are not sufficiently advised to determine the same, and hence express no opinion at this time."

From the trial of the case anew below for the most part and from the facts gleaned from the former case, the record discloses the facts to be about as follows: The land in suit and described in plaintiff's petition was the property of Nathan T. Thurber, a nonresident of Missouri, and in his lifetime a resident of the state of Michigan. Through said Thurber as a common source, both plaintiff and defendants claim title. Thurber died at Detroit, Mich., March 19, 1896, testate, leaving as his sole heirs at law, and likewise the sole legatees under his will, Carrie E. Thurber, his widow, and Mary A. Lemen, intermarried with one Austin H. Lemen, Katie Viger, intermarried with one E. R. Viger, and Hattie E. Stone, intermarried with one Harry L. Stone. The will of said Thurber was duly probated in Wayne county, Mich., on April 26, 1896. By the terms of this will, after certain minor provisions not here pertinent, he gave all the residue of his estate, both real and personal, to his widow, Carrie E. Thurber, for and during the term of her natural life, but with full power to sell and convey and dispose of the same absolutely at her volition. A copy of this will, with the probate thereof duly authenticated, was filed and recorded in Stoddard county, Mo., on the 3d day of January, 1903. Carrie E. Thurber and others on March 27, 1902, conveyed an undivided one-half interest in the land here in controversy to one Samuel F. Campbell, and on October 13, 1903, Carrie E. Thurber by a quitclaim deed conveyed the remaining one-half interest in said land to said Campbell. On February 25, 1904, said Campbell and wife conveyed the land in dispute to plaintiff Keaton, and this is plaintiff's chain of title, no link of which, but only the effect of which, is disputed.

The defendants claim title though a sheriff's deed based on a judgment for delinquent taxes for the years 1894 and 1895, which judgment was rendered on the 23d day of November, 1897, and the land was sold under said judgment on the 9th of March, 1898, and passed from the purchaser at said sale by mesne conveyances to defendants or to their ancestor. The tax proceedings, culminating in the tax sale aforesaid, were against Carrie E. Thurber, Mollie H. Lemen, Austin H. Lemen, Katie A. Vigar, Edward R. Vigar, Birdie E. Stone, and Harry L. Stone, as heirs at law of Nathan T. Thurber, deceased. The sheriff's deed in its averments followed these descriptions of these persons.

Since the case was here before, defendant Albert A. Jorndt has departed this life, but his proper heirs at law have been made parties in his stead, and they, with the other defendants, now own whatever title passed at said tax sale. Further details of the facts herein may be seen in Keaton v. Jorndt, 220 Mo. 117, 119 S. W. 629.

When the case was last tried and the instant record made, and at the close of the case, the learned trial court found and adjudged the title, estate, and interests of the said parties, both plaintiff and defendants, in said land, as set out in the below excerpt from the judgment, viz.:

"That, at the date of the sheriff's sale mentioned in the said decision and judgment of the Supreme Court, the said Carrie E. Thurber was the owner of a life estate in an undivided one-third interest in said lands, and that the said Katie A. Viger was the owner of an undivided one-third interest in the fee in said lands subject to the life estate of the said Carrie E. Thurber, and at the date of the said sheriff's sale the said Mary A. Lemen and Hattie E. Stone were each the owner of an undivided one-third interest in the fee in said lands subject to the said life estate of the said Carrie E. Thurber. Pursuant to said judgment and mandate of the Supreme Court, it is therefore considered, ordered, and adjudged that the said plaintiff, C. L. Keaton, is the owner of an undivided two-thirds interest in and to said lands subject to the said life estate in an...