Koch v. Jenkins

• Decision Date: 10 October 1927
• Docket Number: 25966
• Citation: 300 S.W. 469
• Parties: KOCH v. JENKINS
• Court: Missouri Supreme Court

300 S.W. 469

KOCH v. JENKINS

No. 25966

Supreme Court of Missouri, First Division

October 10, 1927

Motion for Rehearing Overruled December 7, 1927.

Paul E Bradley and McReynolds & Blair, all of Joplin, for appellant.

R. A Pearson, of Joplin, for respondent.

OPINION

SEDDON, C.

Action in ejectment, and to ascertain and determine the title to lot 4 in block 1 of the original town of Joplin, commenced in the circuit court of Jasper county on December 30, 1921. The petition is cast in two counts, the first count being in ejectment, and the second count seeking an ascertainment and determination of the estate, title, and interest of the respective parties in and to the real property in controversy. The answer 'denies that plaintiff has any right, title, or interest in and to the premises described in plaintiff's petition, but alleges the fact to be that the defendant is the sole owner of said premises.' The action was tried before the court, trial by jury having been waived by the parties. No declarations of law were requested by either party to the action or given by the trial court.

The lot in question was individually and solely owned by Thomas A. McClelland, who died testate on April 4, 1910, while a resident of Jackson county, Mo. The will of Thomas A. McClelland was duly probated in the probate court of Jackson county on April 13, 1910. A copy of the will was filed of record in the office of the recorder of deeds of Jasper county on March 8, 1913. By item 12 of said will, the testator, Thomas A. McClelland, directed that:

'All lands in Jasper and Newton counties, Missouri, or in Cherokee county, Kansas, or real estate in Kansas City, Missouri, of which I may be the individual and sole owner at the time of my decease, shall be held in trust by my trustees for ten (10) years thereafter and that the same shall be rented or leased during that time and that the net income therefrom over and above the cost of improvement, repairs, insurance and taxes be equally divided between my children.'

By item 17 of said will, the testator provided that:

'All of the real estate and personal or mixed property of which I may die seized, and whereever found or situated, I give, bequeath and devise to my son, Thomas N. McClelland, my very dear friends, L. B. Bailey and John C. Meredith, of the firm of Meredith and Harwood, all of Kansas City, Missouri, and to their successors in this trust, for the following purposes, to wit: To enter into the possession of all my belongings immediately after my death and take entire control and management thereof, and of the rents, issues and income arising therefrom, with full power and at their discretion (subject to the reservation made in this will prohibiting the sale of real estate for ten years after my decease) during the continuance of this trust: to lease, collect rents, improve, invest and reinvest the same as fully as I might do if living, the chief object in view by me in thus leaving my estate to said trustees is to afford a means of protection and support to such of my children as might hereafter develop wasteful or extravagant habits. And none of my children shall have the right or power to sell, mortgage or encumber, or in any way dispose of or anticipate, any interest in my said estate, or in the income thereof, while in the hands of my said trustees, nor shall the interest of any child in the principal or income of my said estate, while in the hands of said trustees, be conveyed or affected by any judgment or proceeding in any court, had with or without the consent of such child, but the receipt of such child for any part of the principal or income paid, transferred or conveyed to him by said trustees under the provisions of this will, shall be a full acquittance to them for the same.'

A suit to construe said will was instituted by the trustees named in the will in the circuit court of Jackson county, Mo., resulting in a decree construing the will, rendered on January 26, 1912, and a copy of said decree was filed of record in the office of the recorder of deeds of Jasper county on March 8, 1913. The decree, among other findings, recites:

'That the said Thomas A. McClelland at the time of his death left, as his sole and only heirs at law, three children, to wit, Thomas N. McClelland, Robert Porter McClelland, and Elisha R. McClelland; that, after the death of said Thomas A. McClelland, the above-named Thomas N. McClelland, L. B. Bailey, and John C. Meredith, as administrators, took possession of all of the personal property, and, as trustees under his will, took possession of the real estate owned by him at the time of his death, and as such administrators and trustees are now in possession of said property. * * * That as to all real estate in Jasper and Newton counties, Mo., and Cherokee county, Kan., and Kansas City, Mo., of which said testator died seized as the sole and individual owner, the said trustees are without power to sell the same or any part thereof during said period of 10 years, * * * and that, at the end of the period of 10 years from the death of said testator, during which said properties are to be held in trust by said trustees, all real estate then held in trust, wherever situated, shall then immediately vest in fee in the children of said testator, to wit, Robert Porter McClelland, Thomas N. McClelland, and Elisha R. McClelland, if living, in equal undivided thirds. * * *'

At the September term, 1919, of the circuit court of Jasper county, at Joplin, V. E. Koch, the plaintiff in the present cause, instituted a suit against Lulie Taylor, Thomas N. McClelland, John C. Meredith, Elisha R. McClelland, and Robert Porter McClelland, as defendants, to recover upon a special tax bill issued by the city of Joplin for the paving of Broadway street, upon which street the lot here in controversy abuts, and to enforce the lien of said special tax bill by sale of the property in controversy. Personal service of summons was had and obtained upon the defendants Lulie Taylor, Elisha R. McClelland, and John C. Meredith, and constructive service, by publication, was had and obtained against the defendants Robert Porter McClelland and Thomas N. McClelland. Judgment was rendered by the circuit court of Jasper county on April 26, 1920, in favor of plaintiff, V. E. Koch, and against all of the defendants in said tax bill suit, enforcing the lien of said tax bill against the property in question. Special execution issued under said judgment, and the property was sold under said execution, and a sheriff's deed, conveying the real property here in controversy, was executed and delivered to the purchaser of said property at the execution sale, one Edgar V. Koch, a brother of plaintiff herein, on October 13, 1920. The sheriff's deed, which was in due form, was filed of record in the office of the recorder of deeds of Jasper county on October 14, 1920. Thereafter said Edgar V. Koch and his wife, Mamie Koch, executed and delivered to V. E. Koch, plaintiff herein, a warranty deed, dated October 14, 1920, conveying to plaintiff herein the real property in controversy. The warranty deed does not bear the statutory acknowledgment of Edgar V. Koch and Mamie Koch, the grantors thereof, and has not been filed of record. Plaintiff claims title by reason of said special tax bill proceeding and judgment and the sale thereunder, and the unrecorded and unacknowledged deed from Edgar V. Koch and wife to plaintiff, all of which records and instruments were put in evidence by plaintiff at the trial of this action.

Defendant claims title to the lot in controversy by reason of a proceeding or action brought against Thomas A. McClelland, as sole defendant, on December 31, 1919, long after the death of said Thomas A. McClelland, to enforce the payment of delinquent state and county taxes levied and assessed against the lot in controversy for the years 1914 to 1918, inclusive. Constructive service by publication in said tax suit was attempted to be had against the sole, named (and deceased) defendant, Thomas A. McClelland, resulting in a purported judgment in said tax suit, entered on June 21, 1921, upon which purported judgment special execution issued and the lot in controversy was sold to defendant herein, Blanche Jenkins, for the consideration and sum of $ 4 to satisfy said special execution, and a sheriff's deed purporting to convey the said real property to defendant was executed and delivered on November 22, 1921. It is admitted by the parties hereto that defendant, Blanche Jenkins, has paid all the delinquent taxes upon the property. The evidence further shows that defendant has paid the general taxes levied against the lot for the years 1916 to 1923, inclusive.

Plaintiff testified that he was in possession and occupancy of the described lot prior to the time defendant took possession thereof under the sheriff's deed through which she claims title. The plaintiff testified further that there were two billboards upon the lot, and that he was receiving $ 18 a year from the owner of the...