Moore v. Swayne-Hunter Farms, Inc.

• Decision Date: 19 November 1992
• Docket Number: SWAYNE-HUNTER,No. 17719,17719
• Citation: 841 S.W.2d 308
• Parties: Benjamin Bird MOORE, Joseph Handy Moore, and Faye Moore Ely, Plaintiffs-Appellants, v.FARMS, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 308

841 S.W.2d 308

Benjamin Bird MOORE, Joseph Handy Moore, and Faye Moore Ely Plaintiffs-Appellants, v. SWAYNE-HUNTER FARMS, INC., Defendant-Respondent.

No. 17719.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 19, 1992.

John L. Oliver, Jr., Oliver, Oliver, Waltz & Cook, P.C., Cape Girardeau, for plaintiffs-appellants.

James R. Robison, Sikeston, for defendant-respondent.

FLANIGAN, Judge.

On May 1, 1990, plaintiffs filed this ejectment action against defendant Swayne-Hunter Farms, Inc., in the Circuit Court of Mississippi County. The petition alleged that plaintiffs were the owners in fee simple of the land and that defendant was wrongfully withholding possession. The petition sought recovery for losses allegedly incurred by reason of defendant's conduct. The land involved consists of a 160-acre tract, less 10 acres which were condemned for highway purposes in a 1960 condemnation proceeding.

Defendant's answer admitted that it was in possession of the land and alleged that defendant was the lawful owner. The answer also alleged: In 1932 the land was sold for unpaid taxes; defendant's predecessor in title purchased the land at the tax sale; plaintiffs and their predecessors failed to comply with two statutes setting time limits on the right to redeem land sold for taxes or to attack a tax sale. One of the statutes pleaded in the answer prescribed a period of two years after the tax sale, and the other statute prescribed a period of three years after the recordation of the tax deed, which took place in 1932.

After a non-jury trial, the court found the issues against plaintiffs and in favor of defendant. Plaintiffs appeal. There is no factual dispute. The statement of facts contained in the brief of plaintiffs-appellants is accepted by defendant-respondent.

Plaintiffs contend that they are entitled to relief on their petition and the trial court erred in ruling otherwise, because: (a) the judgment entered in 1960 in the condemnation proceeding adjudicated plaintiffs' interest in the land, and defendant was bound by that adjudication; alternatively, (b) the 1932 tax sale conveyed to defendant's predecessor in title only a life estate for the life of Ben Bird Moore, who died on November 26, 1989; on his death, plaintiffs, who prior to his death held a contingent remainder in fee, became entitled to possession.

Defendant contends that the trial court properly denied plaintiffs relief on their petition because: (a) the judgment in the 1960 condemnation action was not conclusive in this action because the condemnation action "affects only the property involved in that case"--the 10 acres taken for highway purposes; (b) "actions in condemnation do not try title to real estate"; (c) defendant's predecessor in title acquired a fee simple title when he purchased the land at the 1932 tax sale and "plaintiffs had a duty to redeem the land from the tax sale" and "failed to do so for over 58 years and their claim to the land is now barred by the statute of limitations."

For the reasons which follow, this court holds that the judgment in the 1960 condemnation action adjudicated plaintiffs' interest in the land, that defendant was bound by that adjudication, and that plaintiffs were entitled to relief on their petition. This ruling makes it unnecessary to consider the respective contentions of the parties concerning the legal effect of the 1932 tax sale and the applicability or inapplicability of statutes of limitations pertaining to post-tax sale redemption rights.

In 1917, title to the 160-acre tract was conveyed to "Ben Bird Moore and the heirs of his body." Ben Bird Moore died on November 26, 1989. The three plaintiffs are his surviving children.

Where A conveys to B and the heirs of his body, the effect under V.A.M.S. § 442.470 is to create an ordinary life estate in B, a contingent remainder in fee in B's issue per stirpes, and a reversion in A. The life estate in B is an ordinary life estate with the usual incidents. B can convey a life estate only. If B purports to convey a fee simple, the statute of limitations does not begin to run against the remaindermen or reversioner until B's death. The remainder in B's issue is contingent on B having issue and on the issue surviving B.... The contingent remainder is freely alienable, by quitclaim as well as by warranty deed, by presumptive heirs of the body, but the grantee of the contingent remainder takes subject to the contingency of his grantor surviving the life tenant.

Possessory Estates, Future Interests and Conveyances in Missouri, by Willard L. Eckhardt and Paul M. Peterson, 23 V.A.M.S.Pamph. 1. To similar effect see Easter v. Ochs, 837 S.W.2d 516 (Mo.banc 1992); Ragan v. Looney, 377 S.W.2d 273, 280[13, 14] (Mo.1964); Hughes v. Neely, 332 S.W.2d 1, 9-10 (Mo.1960); Cook v. Daniels, 306 S.W.2d 573, 576[3, 4] (Mo.1957). Upon the death of the life tenant, Ben Bird Moore, the three plaintiffs became the heirs of his body.

The 1960 Condemnation Action

In 1960, the three plaintiffs, then presumptive heirs of the body of the still-living life tenant, were parties to the condemnation action instituted by the State of Missouri. Also a party to the condemnation action was Thomas Swayne Byrd. ¹ Other defendants in that proceeding were the children of some of the three instant plaintiffs who were then included in the class of possible heirs of the body of the life tenant.

The conflicting claims of plaintiffs on the one hand, and Thomas Swayne Byrd on the other, to the 160-acre tract, were placed in issue in the 1960 condemnation proceeding. The state paid $4,050 into court as compensation for the condemned portion (approximately 10 acres) of the 160-acre tract.

The instant plaintiffs filed a "Petition for Distribution of Funds," in which they claimed an interest in the money. Their pleading alleged: They (and the other class members) are "the ostensible contingent heirs of the body of [the life tenant]"; the 160-acre tract was left to the life tenant during his lifetime and, after his death, to the heirs of his body; the petitioners are all the present living contingent heirs of the body of the life tenant, and file this motion in their own behalf and in behalf of all other contingent heirs of the body of the life tenant who may be such heirs of the body at the time of the life tenant's death; the petitioners and those whom they represent own the corpus of the money ($4,050) subject to the use thereof or the income therefrom, during the life of the life tenant, by the present owner of the life estate whom they believe to be Thomas Swayne Byrd.

Thomas Swayne Byrd filed an "Answer and Cross Petition for Distribution of Funds," in which he pleaded the title history of the 160-acre tract. He pleaded that by reason of mesne conveyances he "now holds said real estate and claims title thereto in fee." He prayed that all of the money be paid over to him.

The judgment in the condemnation action found the issues in favor of instant plaintiffs and against Thomas Swayne Byrd and ordered the money ($4,050) deposited in a savings and loan association, in trust, with the net income derived from the deposit to be paid to Thomas Swayne Byrd (or his successors in interest) during the life of the life tenant, and upon the death of the life tenant, the principal ($4,050) to be distributed to the then living heirs of the body of the life tenant.

The judgment contained the following findings: Thomas Swayne Byrd was the owner of a life estate in the condemned portion of the 160-acre tract during the life of the life tenant and [the instant plaintiffs and the other class members] were the owners of "the remainder fee estate, subject only to the life estate vested in Thomas Swayne Byrd during the lifetime of [the life tenant]."

There was no appeal from the first judgment, and the parties carried it out. Thomas Swayne Byrd received the interest on the $4,050 until the death of the life tenant in 1989, at which time the money was divided equally among the instant plaintiffs.

The Present Action

Plaintiffs' position is that the judgment in the condemnation proceeding, whether it was right or wrong, was binding on defendant as to the issue of plaintiffs' interest in the land. Plaintiffs argue that the condemnation judgment was correct because in the 1932 proceeding, which culminated in the tax sale, only the life tenant was made a defendant. The contingent remaindermen were not named as defendants in the 1932 proceeding. Defendant argues that the contingent remaindermen lost their right to challenge the 1932 tax sale by not exercising that right prior to 1936.

It is unnecessary to inquire into the correctness of the judgment in the condemnation action because the applicability of the doctrine of collateral estoppel is not affected by the legal correctness or incorrectness of the prior adjudication. Sunshine Realty Corp. v. Killian, 702 S.W.2d 95, 99 (Mo.App.1985). All of the issues concerning the legal effect of the 1932 tax sale, and the alleged noncompliance by plaintiffs with the redemption statutes were matters which were ripe for contest in the condemnation proceeding.

A case which is of controlling effect on most of the issues in this action is Murphy v. Barron, 286 Mo. 390, 228 S.W. 492 (1920), a case cited by neither party. The facts in Murphy closely parallel the instant facts and require discussion.

In 1914, plaintiff Murphy sued defendant Barron, seeking, with respect to certain land, a judgment in quiet title and ejectment. In 1901, Murphy was the owner of the land. In 1903 Murphy failed to pay the taxes, and the land was sold, under a judgment in a delinquent tax proceeding, to one Green who in turn conveyed it to defendant Barron.

In 1912, a condemnation action was instituted with respect to a portion of the land, and Murphy and Barron were made parties to that proceeding. Barron filed a pleading alleging that he was the owner of the land...