Mathews v. O'Donnell
| Decision Date | 19 July 1921 |
| Parties | PORTER MATHEWS v. RICHARD M. O'DONNELL and MICHAEL H. O'DONNELL, Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied 289 Mo. 235 at 271.
Appeal from Jackson Circuit Court. -- Hon. Willard P. Hall, Judge.
Affirmed.
Henry Lamm, John I. Williamson and A. N. Gossett for appellants.
(1) The sheriff's deed in the suit and under the judgment for the taxes and enforcing the lien thereof and the proceedings in such suit are regular and sufficient and are so predicated and recognized in the allegation of plaintiff's petitions, and conveyed to Matilda Kinney in such suit against all parties who could possibly be interested in the land including the present plaintiff and J. B. Kinney, who were personally served with summons therein. This placed upon the plaintiff the burden of showing and proving that the purchase by Matilda Kinney was not with her own money and for herself. Defendants afterwards acquired her title as innocent purchasers, through Joseph B. Kinney, who acquired by the mortgagee's sale all the land, and through Matilda Kinney, who acquired by the sheriff's tax judgment sale Tract A and west eight acres of Tract B. This is a question of fact and was decided against the defendants in the court below against and contrary to the evidence as to whether Matilda Kinney was a mere straw representative of her son J B. Kinney, purchaser at the mortgagee's sale. (a) Even if the purchase by Matilda Kinney was with the money of Joseph Kinney and for his use and benefit, or, even if Joseph B Kinney purchased for the use and benefit of his father Joseph Kinney, the mortgagee (although there is no proof that either is so), and even if the purchase by Matilda Kinney was with the money for the use and benefit (also not proven) of Joseph B. Kinney, the purchaser at the mortgagee's sale, yet neither of these parties were under any obligation or duty as to Mrs. Mathews or any of her children to pay these taxes and hence such purchase at the Sheriff's sale cannot be considered the performance of any such duty or obligation. For the reasons: (b) Neither of the Kinneys was in possession of the land while these taxes from 1869 to 1878 were accruing. The case of Kinney v. Mathews, 69 Mo. 520, shows that the ejectment suit for possession was pending as late as April, 1879, and no writ could have been issued therein, and the testimony shows that James P. Mathews, the defendant in that ejectment suit, was in possession of the land and was not ousted, whether under a writ in that case or otherwise, until the year 1881. The tax suit was commenced February 4, 1880. There is no duty to pay taxes on a mortgagee of a life estate or a purchaser under such mortgage owing to the remainderman while such mortgagee or purchaser under him is not in possession and obtaining the fruits of the land. Atkinson v. Dickson, 89 Mo. 464; Gaskins v. Blake, 27 Miss. 675; Lacy v. Davis, 4 Mich. 140; Barrett v. Amrein, 36 Cal. 322; Cox v. Gibson, 27 Pa. St. 160; Wright v. Sperry, 21 Wis. 331, 25 Wis. 617; Pickering v. Lomax, 120 Ill. 289; Waterson v. Devoe, 18 Kan. 223; Williams v. Townsend, 31 N.Y. 411. (c) Mrs. Mathews was not a life tenant, nor was the mortgagee or purchaser at the mortgage sale a life tenant, for the reasons that any of the three instruments to Mrs. Mathews and her children born and to be born which conveyed any title, did not vest in her only a life estate, but did, insofar as they conveyed any title, give her either an estate in fee simple or an estate in common with her children then living, or to her and her children born and unborn, the estate opening to let in children born after the delivery of such instruments, and all these children, including the plaintiff as tenants in common under the proof in this case, are long since barred by limitation. (d) Also, for the reason that Tract A was owned by Mrs. Mathews and Mrs. Cushenbury by conveyance to them from Roy, and was never conveyed to their father, Cogswell, by them, and hence the instrument purporting to be such deed to her and her children from Cogswell and wife, conveyed no title. This negatives the life estate idea as to this Tract A, and defendants through the mortgage and sale thereunder have acquired, as against Mrs. Mathews, under her mortgage, her fee simple title to a half interest derived from Roy, and by the Statute of Limitations and rule of laches against Mrs. Cushenbury her title to an entire half interest derived from Roy. If Mrs. Cushenbury's title is not so barred, that does not help out plaintiff. (2) The surplus proceeds of the sheriff's sale were properly adjudicated to Joseph B. Kinney in full, thereby establishing his previous ownership in fee simple to all the land, on his motion proper therefor. Notice of this motion was personally served on Mr. and Mrs. Mathews and two of the three then surviving children, Andrew R. and Mary E., and constructively on the other of such three surviving children, Porter H., plaintiff here. They were all the adults. At the trial of the case now before this court plaintiff himself offered in evidence these proceedings, defendants' answer alleging this fact as an estoppel. Moran v. Getchell, 97 Mo. 134. In Missouri, the tax lien foreclosure requires sale of the land itself as against all parties defendant. Getchell v. Kriedler, 84 Mo. 472; Myers v. Bassett, 84 Mo. 479; Allen v. McCabe, 94 Mo. 148; Williams v. Hudson, 93 Mo. 524. Therefore such adjudication of surplus proceeds is res adjudicata and a judgment concluding in any other suit between the same parties the ownership of the land which carried the right to such surplus proceeds, viz., adjudication of the fee simple title to the lands from which they were made and represent, converted into money by the court. Moran v. Getchel, 97 Mo. 134; Murphy v. DeFrance, 101 Mo. 151; Gibbs v. Southern, 116 Mo. 204; Ketchum v. Christian, 128 Mo. 38; Donnell v. Wright, 147 Mo. 639. (3) The case of Kinney v. Mathews, 69 Mo. 520, was properly brought by Kinney against James P. Mathews alone. He was the head of the family and at that time was entitled to the possession even if his wife had only a life estate; and likewise if she had the fee simple; and likewise as to her interest if she was a tenant in common with her children. He was the head of the family and in possession, and the only person denying such possession to Kinney, in that case, hence he was the only proper or necessary and was in fact the only defendant in that case. The report of this case was offered in evidence. It was therefore only necessary for the Supreme Court in that case to adjudge, and the only proposition covered by its judgment, was whether or not Kinney was entitled to the possession of the land against the sole defendant therein, and such proposition was decided by the Supreme Court to the effect that Kinney was entitled to such possession against such defendant. This was the gist and only matter decided or adjudged in that case, the other expressions and language in the opinion (which in the majority opinion is uncertain as to whether the instruments there in question vested in Mrs. Mathews a fee-tail with remainder to whomsoever at her death might be the heir or heirs of her body, actually turning out to be the respondent herein, or whether she took a life estate with remainder to her children) are wholly dehors to and beside the case, mere obiter dicta, and are not at all binding in the instant case or appeal. It is clear that such instruments as to such titles as they may have conveyed were not in such obiter remarks correctly interpreted, for the reason that clearly under the overwhelming weight of authorities such deeds conveyed whatever title they did convey to Mrs. Mathews, either in fee simple for the entire estate, or else as tenant in common with her children in fee simple. We use the language "whatever title they may have conveyed" as to such instruments, for that we wish the court not to lose sight of our position that as to Tract A the deed from Cogswell to Mrs. Mathews and Mrs. Cushenbury conveyed nothing. The defendants' title thereto harks back to the fee simple estate conveyed by Roy to those two women, as well as being based upon the sheriff's deed in the tax suit, and also upon the propositions that, as to all the land actually conveyed, Mrs. Mathews took either the entire estate in fee simple or else as tenant in common with her children. The husband was the only proper defendant in this ejectment case, before enactment of Sec. 6868, R. S. 1889. Flesh v. Lindsay, 115 Mo. 1, 13; Evans v. Kunze, 128 Mo. 670, 679; Hall v. French, 165 Mo. 340; Graham v. Ketchum, 192 Mo. 115; Dilberger v. Wrisberg, 10 Mo.App. 465; Getchell v. Messmer, 14 Mo.App. 83. (4) The omission of the words "or undue influence" necessary under the statute then in force to be stated by the officer in the certificate of acknowledgment to the instrument purporting to be a deed from Mrs. Cushenbury and husband and Mrs. Mathews and husband to William Cogswell, rendered such instrument futile and void as a deed. So that it passed no title to William Cogswell for this Tract A, being originally the 38.93 acres in S.W. fractional 1/4 of Section 5. The evidence shows conclusively the land was patented to and owned by Joseph Roy, who on Aug. 21, 1847, conveyed the same in fee simple to Mrs. Cushenbury, then Robinson, and to Mrs. Mathews, then Cogswell. Therefore they so owned this land and the attempted deed to Cogswell by them, conveyed nothing and Cogswell's deed to Mrs. Mathews and her children did not affect the title to this tract of the lands in question. The fee simple title has passed to the defendants through the mortgagees' sale, reinforced by the sheriff's tax sale and deeds...
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