Mathews v. O'Donnell

• Decision Date: 19 July 1921
• Docket Number: No. 22134.,22134.
• Citation: 233 S.W. 451,289 Mo. 235
• Parties: MATHEWS v. O'DONNELL et al.
• Court: Missouri Supreme Court

233 S.W. 451

289 Mo. 235

MATHEWS v. O'DONNELL et al.

No. 22134.

Supreme Court of Missouri, Division No. 2.

Rehearing Denied June 23, 1921.

July 19, 1921.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Suit by Porter Mathews against R. M. O'Donnell and another. From decree for plaintiff, defendants appeal. Affirmed.

Henry Lamm, of Sedalia, and John X. Williamson and A. N. Gossett, both of Kansas City, for appellants.

W. C. Hock, of Kansas City, and L. T. Dryden, of Independence, for respondent.

HIGBEE, P. J.

Appellants have summarized the pleadings and evidence substantially as follows:

This is an appeal from a decree of the circuit court in a suit to determine title to lands. The first count of the amended petition was in ejectment, which plaintiff dismissed at the trial. The second count is in equity, and alleges that plaintiff is the owner of the lands in question, consisting of three adjoining tracts; that defendants are in possession and claim title thereto against plaintiff. a particularly alleges that one Joseph B. Kinney in 1871 became the owner of an estate therein for life of Fannie A. D. Mathews, and as such owner it was his duty to pay the taxes on the land, but in violation of said duty, and with the intent of acquiring the estate of the owners of the remainder in fee of said property, he neglected to pay said taxes and permitted them to become delinquent. Judgment was obtained by the state for said delinquent taxes, and sale made thereunder, and at such sale said Joseph B. Kinney bid in a part of these lands and caused a sheriff's deed thereto to be made to his mother, Matilda Kinney, thereby attempting to acquire the remainder estates against plaintiff. The defendants claim ownership under deeds made by said Joseph B. Kinney and his mother, Matilda, and had knowledge before the execution of such deeds of "the facts and circumstances herein recited."

The prayer is that the court set aside and hold for naught said sheriff's deed and to determine title, and for all proper relief as provided by section 1970, R. S.

To the second count defendants answered, admitting possession and denying any ownership in plaintiff; admitting that Matilda Kinney acquired title to a part of the land by virtue of a sale in a suit for taxes, but that defendants acquired such tax title as innocent purchasers for value without knowledge of any defect in her title; pleading the 10-year, 24-year, and the 30-year limitation and payment of taxes therefor by defendants and failure of plaintiff to pay any such; valuable improvements as occupying claimant; pleading also that the surplus money proceeds of the tax suit sale of the land was claimed by Joseph B. Kinney, and that plaintiff was estopped by that suit and proceeding from claiming title to those lands; laches on the part of plaintiff; and praying that the court decree defendants to be the fee-simple owners of the lands in question.

The cause was heard by the court at the September term, 1917, and taken under advisement. At the September term, 1910, judgment was rendered setting aside and holding void the sheriff's deed on the tax judgment sale and adjudging the plaintiff to be the owner in fee of and entitled to the possession of 5214/6300 undivided part of two tracts of land, one originally containing 101.60 acres, and the other 38.93 acres, and 5514/6300 of an undivided one-half of another tract of 4 2/3 acres, all in township 50, range 29, Jackson county.

The tract described in the petition and judgment as the southwest fractional part of the southwest quarter of section 5, originally containing 38.93 acres, appellants designate as "tract A," and that described as an of the southeast fractional quarter of section 6, originally containing 101.60 acres, as "tract B," and that described by metes and bounds, containing 4 2/3 acres, as "tract C." This tract adjoins tract B at the northwest corner. (Mrs. Mathews also owned an undivided one-half in fee of tract C at the time the mortgage, at No. 12 of the abstract of title, Infra, was executed.)

The lands sold in the proceeding for delinquent taxes are tract A and the west 8 acres of tract B. The Missouri river is the northern boundary of each tract.

The abstract of title shows the following transfers:

Tract A:

(1) September 7, 1838. Patett, United States to Joseph Roy.

(2) August 21, 1847. Warranty deed, recorded Book M, page 411, Joseph Roy and wife to Celia F. Robinson (afterward Cushenbury) and Fannie A. D. Cogswell (afterward Mathews, mother of plaintiff).

(3) June, 1856. Warranty deed, Book I, page 520, Fannie A. A Mathews and husband, James P., and Celia Cushenbury and husband, A Cushenbury, to William Cogswell, the exact wording of the description being as follows:

"Also our undivided interest in a fractional piece of land deeded by Joseph P. Roy to Celia F. and Fannie A. D. Cogswell, now Celia F. Cushenbury, and F. A. D. Mathews, it being a part of the S. W. ½ of the S. W. ___ of section 5, township 50, range 20."

The certificate of acknowledgment of the female grantors to this deed is as follows:

"Being by me made acquainted with the contents of said deed, acknowledged on an examination apart from their respective husbands, and they executed and delivered the said deed freely and without compulsion of their said respective husbands."

On the offer of this instrument in evidence defendants objected because the description was insufficient to identify tract A, and the acknowledgment did not recite that the married women had declared they executed "freely and without compulsion or undue influence" of their husbands.

(4) October 29, 1857. Warranty deed, Book 27, page 46, William Cogswell and wife to F. A. D. Mathews, the granting clause being as follows:

"Bargain, sell, and convey to the said F. A. D. Mathews and all her children she has now or ever may have the following described tract of land, to wit: [Here follows description of tract A.]"

The habendum clause reads:

"To have and to hold the same unto the said F. A. D. Mathews and her children as aforesaid and their heirs, but it is to be distinctly understood, if the said F. A. D. Mathews may hereafter conclude to sell the above-described tract of land, she is hereby empowered and authorized to do so by arranging it so that the proceeds of said land is to be laid out for other lands or property to be conveyed so as to put the right of title in the said F. A. D. Mathews and her children."

Tract B:

(5) June 1, 1868. Patent, United States to William Cogswell, containing 101.60 acres.

(6) April, 1856. Warranty deed, recorded Book Y, page 532, William Cogswell and wife to Fannie D. Mathews. The granting and habendum clauses are the same in this deed as in No. 4, supra.

Tract C:

4 2/3-acre tract described by metes and bounds (approximately 15 poles east and west by 42 poles north and south) in and out of the northeast corner of New Madrid claim survey at northwest corner of tract B.

(7), (8), and (9) are transfers which bring the title down to Jonathan Colcord.

(10) August 9, 1850. Warranty deed, Book P, page 477, Jonathan Colcord and wife to F. A. D. Cogswell and Celia F. Cushenbury, daughters of Wm. Cogswell.

(11) June, 1856. Deed, Book Y, page 528, Celia F. Cuslaenbury and husband, Daniel, conveying undivided interest of grantor in tract C to Fannie A. D. Mathews. (The granting and habendum clauses are the same as in No. 4.)

(12) July 14, 1866. Mortgage with power of sale, Book 46, page 497, filed September 16, 1866," Fannie A. D. Mathews and her husband to Joseph Kinney, conveying, among others, tracts A, B, and C. This mortgage recites that it is given to secure a note for $7,280, due at 12 months, with the usual power of sale.

(13) May 15, 1871. Mortgagee's deed Book 89, page 41, Joseph Kinney, mortgagee, to Joseph Beeler Kinney. This forecloses No. 12.

(14) Suit was brought by the state on relation of Daniel Murphy, collector, against Joseph B. Kinney, James P. Mathews, and Fannie A. D. Mathews, his wife, Porter H. Mathews, Andrew R. Mathews and Mary Eliza Mathews, a minor, to the March term, 1880, of the circuit court, to enforce the state's lien for taxes on tracts A and B for the years 1869 to 1878, inclusive. The return recites personal service on the defendants except Joseph B. Kinney, who filed answer. Guardian ad litem was appointed for the minor defendant, and such guardian filed answer. On March 27, 1880, judgment was rendered as prayed, adjudging the amount of taxes, interest, and fees on tract A, at $111.96, and on tract B at $373.42—total $485.38. Special execution was issued on this judgment September 4, 1880, and the sheriff sold all of tract A for $410 and 8 acres off the west side of tract B for $480 to Matilda Kinney, out of which the sheriff paid the judgment and costs and had remaining $245.68. Thereupon the defendant J. B. Kinney filed his motion setting up that he was the absolute owner of the lands sold and was entitled, as against the other defendants, to this surplus of sale proceeds, $245.68. Notice of this motion was given to Porter H. Mathews by posting in the clerk's office, and the motion was sustained by the court on September 29, 1881. Sheriff's deed, dated October 25, 1880, recorded in Book 120, page 448.

(15) October 4, 1880. Warranty deed, Book 111, page 537, by James P. Mathews, Fannie A. D. Mathews, and Andrew R. Mathews to Mary E. Mathews, conveying tract A, 30.93 acres; also tract B, therein recited as 90 acres.

(16) December 14, 1882. Warranty deed, Book 130, page 143, consideration $3,000, from J. B. Kinney, T. Kinney, and Matilda Kinney, his wife, to Mary E. O'Donnell, conveying tracts A, B, and C, containing a recital as follows:

"Should at any time the title be imperfect, and the above Kinneys unable to make it perfect, then said Kinneys agree to refund all money paid in original purchase, upon condition that Mary E. O'Donnell deed the said property back to...