King v. Sligo Furnace Co.

• Decision Date: 16 December 1916
• Docket Number: No. 1881.,1881.
• Citation: 190 S.W. 368
• Parties: KING v. SLIGO FURNACE CO.
• Court: Missouri Court of Appeals

190 S.W. 368

KING v. SLIGO FURNACE CO.

No. 1881.

Springfield Court of Appeals. Missouri.

December 16, 1916.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Action by William King against the Sligo Furnace Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Edgar & Edgar, of Ironton, and Watts, Gentry & Lee, of St. Louis, for appellant. Ernest A. Green, of St. Louis, for respondent.

STURGIS, J.

This is an action for trespass, charging defendant, in connection and collusion with other persons, with cutting and removing timber and railroad ties made therefrom on plaintiff's lands in Iron county. The petition is in five counts, identical in form, and each describing a particular tract of land. Each count charges defendant with willful trespass committed without any claim of right or title in the land or timber, and asking for treble damages under section 5448, R. S. 1909. Each count refers to and states a good cause of action under such statute. The plaintiff recovered on each count, the verdicts aggregating $1,000, and each reciting that defendant took (purchased) the timber (ties) without knowledge that same had been wrongfully taken from the lands of plaintiff.

It was shown that the lands in question were incumbered by a deed of trust in the nature of a mortgage at the time the timber was taken, and defendant contends that the trustee or beneficiary therein is the party entitled to sue and recover the damages instead of the mortgagor. The deed of trust was still outstanding, but no steps had been taken to foreclose the same or take possession thereunder. The law in this state is, as stated in 27 Cyc. 1272, that:

"As against strangers, the mortgagor of realty remains the owner, and they cannot plead the mortgage in defense to actions against them for trespass or injuries to the property." Logan v. Railroad, 43 Mo. App. 71, 74; Watts v. Loomis, 81 Mo. 236.

The cases cited by defendant (Chouteau v. Boughton, 100 Mo. 406, 13 S. W. 877; Heitkamp v. La Motte Granite Co., 59 Mo. App. 244; Life Insurance Co. v. Mangold, 83 Mo. App. 281) go no further than to hold that such mortgagee or beneficiary can, after foreclosure and acquiring title to the land, recover for prior trespass, diminishing the value of the land, which failed to sell for enough to pay the secured debt. In Heitkamp v. La Motte Granite Co., 59 Mo. App. 244, 250, the court expressly recognizes the rule that prior to entry or foreclosure the mortgagee cannot recover for a trespass unless fraudulently committed for the purpose of impairing the security.

Another point raised by defendant is that as this land was not in the actual possession of the plaintiff, he cannot recover, except upon proof of title in him, and that as to the land described in the second count of the petition plaintiff's title fails because his title depends on a tax deed which recites a tax judgment against Daniel Reynor instead of Daniel Rynor, the then holder of the legal and record title. Defendant rests his argument on the ground that the tax suit must be against the real or record owner, and that Reynor was not such owner, nor is Reynor idem sonans with Rynor. It is insisted that these names are pronounced differently, Rynor being pronounced Rinor, and Reynor being pronounced Ranor. A number of cases are cited wherein courts resorted to this doctrine in order to preserve the land to the real owner as against a purchaser in a tax proceeding based on constructive service. There is grave doubt as to whether these names would not be pronounced the same even to the attentive ear, but we need not let the case ride off on that doctrine. The doctrine invoked is applicable only to suits based on constructive service, and since nothing but the tax deed was put in evidence, there is no showing that the judgment and sale were based on constructive service, except what inference might be drawn from the recital in the tax deed that the judgment was "against Daniel Reynor and all interested unknown parties." There may have been personal service on Daniel Rynor and constructive service as to the unknown parties, and the mere misspelling of his name in the summons or judgment, or both, would not invalidate a judgment had on personal service. The tax deed recites the judgment, issuance of execution, due advertisement and sale of the land, and conveys the land, and not merely the interest of any person or persons therein. The deed itself does not show that the tax judgment and sale are void. Smith v. Vickery, 235 Mo. 413, 421, 138 S. W. 502.

Moreover, this is not a contest between parties claiming ownership of the land, the one under a tax sale and deed and the other under the original ownership. Defendant asserts no title or claim of title or interest whatever in this land, and is a naked trespasser — a stranger to the title — seeking to justify his trespass, not on any claim of right, but solely on the defects in his adversary's paper title, constituting fair color of title at least. The rule in such cases is that, as against such trespasser not asserting any title or right in the land, the person having constructive possession under a tax deed, fair on its face and conveying the land to him, need not show that the proceedings leading up to the tax sale were regular; but the presumption obtains that the official acts necessary to be performed in order to make a valid sale were taken, and that the attempted transfer of title by judicial process was regular and according to law. Such is the law as declared by Goode, J., in his able opinion in Kries v. Land & Lumber Co., 121 Mo. App. 184, 98 S. W. 1086, from which we quote:

"In view of the foregoing authorities and the principles they announce, we feel justified in holding in the present contest between the plaintiff and the defendant company, which has shown to have had no color of title to the timber in controversy or any sort of right to enter on the land where it grew, that the proceedings leading up to the tax deed in plaintiff's chain...