Moise v. Robinson

• Decision Date: 30 December 1975
• Docket Number: No. 36284,36284
• Citation: 533 S.W.2d 234
• Parties: Lionel C. MOISE and Anna Mae Moise, his wife, Plaintiffs-Respondents, v. Paul J. ROBINSON and Hazel J. Robinson, his wife, et al., Defendants-Appellants. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 234

533 S.W.2d 234

Lionel C. MOISE and Anna Mae Moise, his wife, Plaintiffs-Respondents, v. Paul J. ROBINSON and Hazel J. Robinson, his wife, et al Defendants-Appellants.

No. 36284.

Missouri Court of Appeals, St. Louis District, Division Three.

Dec. 30, 1975.

Robert C. Dodson, Pannell, Dodson & Robinson, Festus, for defendants-appellants.

Samuel Richeson and Nicholas G. Gasaway, Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Hillsboro, for plaintiffs-respondents.

SIMEONE, Presiding Judge.

This is an appeal by defendants-appellants, Paul J. Robinson and his wife, Hazel, from a judgment entered by the circuit court of Jefferson County quieting title to certain land in the plaintiffs-respondents, Lionel C. and Anna Mae Moise, his wife, adjudging that the defendants-appellants have no interest in said premises. For reasons hereinafter stated, we affirm the judgment

Plaintiffs, Mr. and Mrs. Moise, on June 22, 1972, filed their petition against certain persons ¹ including the defendants Robinsons, seeking to quiet title to a certain parcel of land in Jefferson County consisting of five acres ² 'more or less.' The Robinsons counterclaimed also seeking to quiet title. Trial was held in January, 1974.

The sole issue presented by this trial and appeal is who has, as between the Moises and the Robinsons, a superior 'title' to the disputed five-acre tract in Jefferson County. Both parties are innocent; both have sincere claims; the Robinsons have been paying taxes on the disputed 'property' since 1954 under a collector's deed dated February 28, 1962, until the date of suit, 1972; the Moises purchased the property in good faith from the Halahans when they saw a 'for sale' sign on the property in 1966. They claim under a deed from the Halahans which describes the property in detail and which conforms to the description of the property in an original deed dated June 27, 1930 from Arthur J. and Lily M. Brewster to Iowa Lee Roberts.

One or the other of these innocent parties must suffer, and we are faced with the unpleasant and difficult task of determining who has a 'better' title between them. The task is not an easy one for we are bound by the facts which can only be described as a gallimaufry.

The issue between the parties arises because the collector of Jefferson County over the years issued five separate collector's deeds to certain property which both parties claim. In order to understand some of the complicated facts, so that we may resolve the issue according to law, it is necessary to set them forth in some detail.

On June 27, 1930, Arthur J. and Lily M. Brewster, by general warranty deed, conveyed to 'Iowa Lee Roberts' and 'her' ³ heirs and assigns a tract of land in Jefferson County described in the deed as follows:

'Beginning at a point on the North Line of Lot Two (2) of the Southwest Quarter of Section Eighteen (18) in Township Forty (40) North in Range Three (3) East, 825 feet west of the North East corner of said Lot 2; Thence South and parallel with the East line of said lot to the north line of a 30 foot Public Roadway; thence westwardly along the North line of said Road to a point 990 feet West of the East line of said lot; thence North to the North line of said lot; thence East with said North line, 165 feet to the place of beginning, and containing 5 acres more or less.'

Over the years, between 1946 and 1964, five collector's deeds were executed conveying to various persons Part of lot 2 in the southwest quarter, section 18, Township 40, Range 3. These deeds are as follows:

1. On November 4, 1946, the collector of Jefferson County conveyed by collector's deed '5 acres-Pt. lot 2 SW 1/4, Sec. 18, Twp. 40, R. 3' to John Esther of Kimmswick, Missouri. This deed recited that whereas the taxes on the above property for the years 1939--1945 were 'returned delinquent in the name of Irwin Roberts' the property was sold to John Esther.

2. The second collector's deed was made on December 8, 1947. This deed recited that whereas Harry E. Roche produced a certificate of purchase for the sale of property returned delinquent in the name of Irwin Roberts, for taxes due 1940 through 1944, the property described as 'Part of Lot 3(?) of the Southwest quarter of Section 18, Township 40, Range 3, containing 5 acres' was conveyed to Harry E. Roche.

3. The third collector's deed, made October 23, 1956, conveyed to R. J. Liebe 'Pt Lot Two (2), SW 1/4 Section Eighteen (18) Township Forty (40), Range Three (3) Containing 55 acres (?)' for taxes delinquent in the name of Harry E. Roche (not Roberts) for the years 1949 through 1953.

4. The fourth such deed was to the appellants Mr. and Mrs. Paul J. Robinson. This collector's deed conveyed on February 28, 1962, 'Pt. Lot 2 SW 1/4, Section 18, Township 40, Range 3' to the Robinsons because of delinquent taxes for 1954 through 1958 on land in the name of Harry E. Roche. It is to be noted that no acreage is shown on the deed. This is the deed upon which the Robinsons claim their title to the disputed property.

5. The fifth deed, from which the Moises eventually obtained their title, was a collector's deed conveying '5 Acres--Pt Lot 2, SW 1/4 in Survey #3053, Section 18, Twp. 40, R 3, School District R--2, Road District #55' to August D. Mastis and Norma M. Mastis. This deed was executed because of nonpayment of taxes on said property in the name of Irvin (not Irwin) Roberts for the years 1956 through 1960. The property was purchased at public sale by Walter C. Lewedag. This deed was made on February 29, 1964.

In 1966, the plaintiff, Mr. Moise, saw a 'for sale' sign on a tree in front of the property now claimed by the Moises. The sign read: '5 acres $600, John Holahan, 2918 Lemp Ave., St. Louis, Mo.' Mr. Moise took the sign down and 'contacted the man and bought it.' Mr. and Mrs. Moise received a general warranty deed from 'John A. Holahan, a/k/a John A. Halahan and Helen I. Holahan, a/k/a John A. Halahan (sic).' This deed was dated July 27, 1966 and conveyed to Mr. and Mrs. Moise 'Part of Lot Two (2) of the Southwest quarter of section 18, Township 40 North, Range 3 East, described as follows:' (then followed the exact description of the land as conveyed in the Brewster deed to 'Iowa Lee Roberts').

The Halahans had, on July 9, 1964, received a quit claim deed from August and Norma Mastis. ⁴ They, of course, had received the fifth collector's deed in February, 1964. The deed from Mastis to Halahan conveyed '5 acres Part lot 2 SW 1/4 in section 18, township 40 Range 3, School district R--2 Road district 55 ⁵--beginning' (then followed the exact description as conveyed in the Brewster deed to Iowa Lee Roberts). The Halahans in turn conveyed the same description of the property to the Moises on July 27, 1966, except the beginning words '5 acres' were not used.

Mr. Moise met Mr. Halahan in St. Louis. '(W)e went out there and looked (the property) over, and then we came over to the abstract company. That's where we closed the deal. . . .'

The land purchased by the Moises is adjacent to land they purchased in 1952. There is no dispute that the Moises own the land purchased in 1952. The land which is the subject of this controversy is 'very hilly and rocky, but it was a good recreation place for us (Moises) at the time we bought it.' There were no improvements on the land obtained from the Halahans, but the Moises 'took care of it and put up different things and used lumber off of it. . . .' They cut trees, firewood and 'things like that' and also had the land surveyed. Mr. Moise testified that, although he met the Robinsons in St. Louis, he never saw them on the disputed property. From 1967 through 1973, Mr. and Mrs. Moise have paid, to the county collector, real estate taxes on property described on the tax receipts as 'PT LOT 2 SW 1/4, Sch. Dist. R--2, Rd. Dist. 55, Sec. 18, Twp. 40, Rng. 3, A. 5.' ⁶

Prior to the institution of this action to quiet title by the Moises, they obtained a quit claim deed dated May 3, 1972, from John and Pauline Esther, the grantees of the first collector's deed. On May 5, 1972, they also acquired a quit claim deed from R. J. Liebe, the grantee of the third collector's deed in 1956. These quit claim deeds described the land exactly as that described in the Halahan's deed to the Moises and the Mastis' deed to the Halahans. Each of the deeds recited that '(i)t is the intent of grantor(s) to convey all that right . . . acquired in that certain Collectors deed. . . .' However, the Moises did not obtain any quit claim deed from Harry E. Roche.

At trial, Mr. Moise testified that he had a 'title run' on the property. The 'certificate of title' relating to the land described in the Mastis to Halahan and Halahan to Moise deeds shows that as of May 7, 1973, the title still was vested in 'Iowa Lee Roberts' (not Irwin or Irvin), and subject to any outstanding interests, if any, of the Robinsons and Moises by virtue of tax deeds and quit claim deeds. Mr. Moise also had the land surveyed by a registered land surveyor.

Mr. Mastis, at trial, testified that while he owned the disputed property he never saw Roberts, or Roche or the Robinsons on the land.

Mr. Ronald Dunnegan of St. Paul Title Company, and formerly of the Jefferson County Abstract Company, testified that the property shown on the certificate of title was vested in 'Iowa Lee Roberts' as of May, 1973, subject to any outstanding interests. He also testified that he 'can't say' that the 'series of (five) tax deeds' 'are (sic) directly on this property' because the legal descriptions are 'indefinite.' He testified that all of the descriptions on the five tax deeds were 'basically' the same, but that his company would not insure the title because the description contained 'in those five tax deeds' ⁷ does not 'meet the standards required by' the company. They are 'actually indefinite, and the property could not be located.' He testified that the description of the...