McKee v. Spiro

• Court: Missouri Supreme Court
• Writing for the Court: Thomas, J.
• Citation: McKee v. Spiro, 17 S.W. 1013, 107 Mo. 452 (Mo. 1891)
• Decision Date: 22 December 1891
• Parties: McKee et al. v. Spiro, Appellant

17 S.W. 1013

107 Mo. 452

McKee et al. v. Spiro, Appellant

Supreme Court of Missouri, Second Division

December 22, 1891

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

Eber Peacock for appellant.

(1) Appellant's possession of the premises mentioned in the suit under color and claim of title is admitted by the pleadings and shown by the evidence, and is adverse to any right shown in plaintiffs. (2) It was incumbent on plaintiffs to show that they or their ancestor or other person under whom they claim was seized or possessed of the premises in question within ten years before the commencement of this suit. They showed just the reverse. Foster v. Evans, 51 Mo. 39; Hulsey v. Wood, 55 Mo. 252; Bledsoe v. Sims, 53 Mo. 305; Moore v. Harris, 91 Mo 617; R. S. 1879, sec. 3219. (3) The trustee's deed is void, because the grantees are therein named as "the heirs and legal representatives, whether under her last will and testament, or by inheritance of her, Evelina J. Sharp deceased." This description is too vague and indefinite as to who the grantees are, and presents two antagonistic classes of takers which, if one could take under this deed, the other could not. Alexander v. Hickox, 34 Mo. 496; Chappell v. Allen, 38 Mo. 221; Campbell v. Johnson, 44 Mo. 247; 3 Washburn on Real. Prop. [5 Ed.] p. 281. And the ambiguity being patent could not be explained by extrinsic testimony. Bradshaw v. Bradbury, 64 Mo. 334. Nor was any testimony offered to show whether Mrs. Evelina J. Sharp left a will or did not. (4) It appears that the deed made by McClellan, trustee, was to himself as one grantee, in which case the deed would be void, and the deed would also be void as a conveyance by him to his wife. (5) The court erred in admitting the deposition of Josiah G. McClellan. Meier v. Thieman, 90 Mo. 433. (6) If the respondents had any equities in the matter in suit, they have been lost by their laches. Equity powers cannot be invoked where parties have negligently slept upon their rights, and induced others to act upon the confident belief that they had abandoned them. Landrum v. Bank, 63 Mo. 48. And courts of equity are very reluctant to interfere, though there may be no bar of the statute. Morman v. Talbott, 53 Mo. 392; Daus v. Fox, 59 Mo. 125; Bradshaw v. Yeats, 67 Mo. 221. (7) The respondents' right to redeem, if any existed, was long barred by the special statute permitting redemption as against judicial sales to collect special tax bills. Sess. Acts, 1871, sec. 9, p. 194. (8) Upon the theory that the parties might be allowed to redeem, the complainants must refund the money expended by defendant and make her financially whole. Cravens v. Moore, 61 Mo. 178.

D. T. Jewett and W. S. Bodley for respondents.

(1) This action partakes of the nature of an action of ejectment and a bill in equity. In making out title in plaintiffs, it is not necessary to trace title further back than John Lady, as he is the common source of title under whom both parties claim. All the titles either has start from John Lady, and it is well-settled law in this state that it is only necessary to go back to the common source of title, and this evidence may be put in by plaintiff. Charles v. Patch, 87 Mo. 463; Smith v. Lindsey, 89 Mo. 79; Grandy v. Casey, 93 Mo. 605; Huff v. Morton, 94 Mo. 408. (2) Defendant Spiro got no title by virtue of the suit on the tax bill and sale on execution under said judgment, as against plaintiffs, because at the time and before suit was brought there was a deed of trust on the land duly recorded, and neither the trustee, nor the cestui que trust, were made parties to that suit, and said deed of trust was of record before and when suit was brought, and the trustee was, also, at the time a resident of St. Louis. Therefore, all the proceedings in that tax suit were void as against those having title under said deed of trust; but, if not void, their right to redeem is fully recognized in the following cases: Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 477; Cowell v. Gray, 85 Mo. 169; Allen v. McCabe, 93 Mo. 138. (3) McClellan was a competent witness, because his wife was the owner of one-seventh of the land, and, as it was inherited by her after marriage, he had a right of possession and could have maintained ejectment in his own name. He was, therefore, a party in interest, sufficient to make him a competent witness. Cooper v. Ord, 60 Mo. 430; Quade v. Fisher, 63 Mo. 325; Steffen v. Bauer, 70 Mo. 404. But payment of the special tax bill before judgment was fully proved by the clerk in the tax office, viz., E. F. Linden. (4) Where the petition prays for equitable relief, and also asks for possession, the court will grant such writ of possession, when the relief prayed for is granted, and plaintiff is entitled to possession. Woodsworth v. Tanner, 94 Mo. 128.

OPINION

Thomas, J.

One John Lady, claiming to be the owner of a lot of land about sixty-five 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 twenty-seventh 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 his 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 third 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 this land from the sale under the judgment on the special tax bill above mentioned by paying whatever sum the court might find to be just. The court found that $ 158 was due defendant for taxes, etc., which plaintiffs paid, and thereupon the court vested the title to the property in them and defendant appealed.

I. The first contention is that the plaintiffs did not show title to the property in John Lady, and, therefore, they failed to show title in themselves. This was not necessary as they showed that defendant...