McKee v. Spiro

• Decision Date: 22 December 1891
• Citation: 17 S.W. 1013,107 Mo. 452
• Parties: McKEE et al. v. SPIRO.
• Court: Missouri Supreme Court

17 S.W. 1013

107 Mo. 452

McKEE et al. v. SPIRO.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

TAXATION — REDEMPTION FROM TAX-SALE — LIMITATIONS — MORTGAGES — FORECLOSURE OF TRUST-DEED — COMPETENCY OF WITNESS.

1. Where, in an action to redeem land from a tax-sale, both parties claim title from a common grantor, the plaintiff need only show a perfect chain of title from such grantor, without showing title in him.

2. A trustee's deed on foreclosure of a deed of trust, executed after the death of the cestui que trust, to "her heirs and legal representatives, whether under her last will and testament or by inheritance," is not void for uncertainty as to grantees.

3. Sess. Acts 1871, p. 194, § 9, providing that the owner of lands sold on foreclosure of a special tax-bill, who was not summoned, but notified by publication, and failed to appear, may redeem "within two years after the day of sale," does not bar an action brought after the lapse of this period to redeem from such a sale, where plaintiffs and those under whom they claim were not made parties, and did not appear.

4. On foreclosure of a deed of trust, the land was sold to the heirs of the deceased cestui que trust, one of whom was the trustee's wife. Held, that such trustee was a competent witness for the heirs, in an action by them to which he was a party, brought to redeem the land from a sale on foreclosure of a special tax-bill.

5. On foreclosure of a deed of trust, the trustee sold the land to the heirs of the deceased cestui que trust, one of whom was the wife of the trustee. Held that, whether such heirs thereby acquired the legal title or only the interest of the cestui que trust in the land, they had the right to redeem it from a sale on foreclosure of a special tax-bill, made after the registry of the trustee's deed.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Action by Annie B. McKee and others against Alice Spiro to redeem certain real estate from a sale on foreclosure of a special tax-bill. Judgment for plaintiffs. Defendant appeals. Affirmed.

Eber Peacock, for appellant. D. T. Jewett and W. S. Bodley, for respondents.

THOMAS, J.

One John Lady, claiming to be the owner of a lot of land about 65 feet front on Park avenue, in the city of St. Louis, in July, 1873, gave a deed of trust signed by himself and wife on the same, for about $1,200, with principal note payable in two years and six months, Josiah G. McClellan being made trustee. One Lewis was made cestui que trust, but the money loaned was the money of Mrs. Evelina J. Sharp; and the deed of trust and notes were delivered to her, and passed into the hands of her administrator. The note not being paid, said McClellan duly advertised and sold said land at auction on the 27th of September, 1883, to plaintiffs. The plaintiffs are the heirs and legal representatives of Evelina J. Sharp. Said trustee made his deed to said "heirs and legal representatives," and duly recorded the same December 24, 1883. In November, 1874, said John Lady and wife sold the equity of redemption in said land to John H. Terry, which deed was duly recorded. In May, 1882, said John H. Terry sold his equity of redemption to one H. Everly, which deed was duly recorded. In April, 1881, while Terry owned the equity of redemption, the city of St. Louis issued a special tax-bill against said property for benefits to the same for opening Park avenue. In June, 1883, after Terry had sold to Everly, the city brought a suit against Terry on said special tax-bill. After the suit had stood in court for some time, the name of Terry was stricken out, and the name of Everly inserted, and service made on Everly. No person ever appeared to defend the suit, and the same remained in court until March 25, 1884, when judgment was taken by default against Everly for the tax-bill and costs. This was six months after the deed of trust had been foreclosed on the property, and the trustee's deed recorded. The trustee in the deed of trust was not made a party to this suit, nor were those claiming under Mrs. Sharp. Execution issued on said judgment, and in May, 1884, the sheriff sold said land thereunder to one A. W. Black for $80. On the 3d of September, 1884, the said Black sold said land to the defendant, Alice Spiro, for the sum of $125. Miss Spiro paid some taxes on the land, and fenced it, but the fence disappeared very shortly after she put it there. The plaintiffs brought this suit to redeem...