Murphy v. Barron

Citation205 S.W. 49,275 Mo. 282
Decision Date04 June 1918
Docket NumberNo. 19251.,19251.
PartiesMURPHY et al. v. BARRON.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Suit by Joseph Murphy and others against William N. Barron. From a decree for defendant, plaintiffs appeal. Reversed and remanded.

L. M. Henson, of Poplar Bluff, for appellants. Lew R. Thomason, of Poplar Bluff, for respondent.

BROWN, C.

This suit was instituted in the Butler circuit court December 5, 1914, by petition containing two counts. The first of these is framed upon the provisions of section 2535 of the Revised Statutes of 1909 and is, omitting caption and signatures, as follows :

"Plaintiffs, for their cause of action, state that they are the owners of and claim the legal title to the following described real estate, lying, being, and situate in the county of Butler, and state of Missouri, to wit, all of the southwest quarter of the southeast quarter of section seventeen (17) in township twenty-four (24) north, range seven (7) east, except a strip 100 feet wide heretofore condemned for railroad right of way.

"That the defendant claims some title, interest, and estate in said land, which said title is based and predicated upon a void judgment rendered in the circuit court of Butler county, Mo., in tax suit No. 6486, on the 19th day of June, 1903, and execution sale thereunder, wherein the state of Missouri, at the relation and to the use of John H. Souders, collector of revenue in and for the county of Butler, and state of Missouri, was plaintiff, and plaintiff Joseph Murphy et al. were defendants.

"Plaintiffs further state that, at the time the judgment above referred to was rendered and at the time the sale thereunder was made, that plaintiff, Joseph Murphy, was incarcerated in the penitentiary of the state of Missouri, under and by virtue of a judgment and sentence theretofore rendered in the circuit court of said Butler county, Mo., against him, upon a charge of a felony, which said judgment and sentence was for a term of years less than life imprisonment, and that at the time said tax judgment was rendered and said sale was made, no guardian, trustee, nor legal representative was appointed by the court, nor did any such representative appear on behalf of the said Joseph Murphy in said proceedings.

"Plaintiffs further state that the claim of the defendant is adverse and prejudicial t3 the title and ownership of these plaintiffs in and to said land.

"Wherefore plaintiffs pray the court to set aside the judgment and sale above mentioned and to cancel the deed and all mesne conveyances made thereunder, and further pray the court to try, ascertain, and determine the title of the parties hereto in and to said real estate, and, by its judgment and decree, define said title, and for such other orders in the premises as to the court may seem meet and just.

"And if the court finds that the claim of defendant in and to said real estate is founded upon the invalid tax sale above mentioned and that the defendant has, in good faith, paid any taxes on said land, under and by virtue of said claim, plaintiffs hereby tender the full amount of all of said taxes to the defendant, together with 6 per cent. interest thereon from the dates the same were paid until this time, and hereby offers to pay the same as soon as the amount hereof, if any, is ascertained and determined by this court."

The second count is in the ordinary form in ejectment.

The second amended answer, upon which the cause was tried, sets forth the judgment for taxes pleaded in the first count of the petition, recites personal service of summons on Joseph Murphy, the defendant in that suit and plaintiff in this, on October 7, 1901, returnable to the next October term of the Butler circuit court; that on June 19, 1903, judgment was rendered in said cause in the amount of $8.97 for taxes and a so for the costs of said suit; that on July 31, 1903, special execution issued on this judgment and the land sold thereunder on October 5th to Charles F. Green, by whom it was conveyed on the 10th day of the same month to defendant; that on August 11, 1911, the Butler County Railroad Company began suit against Joseph Murphy, Sarah Murphy, William N. Barron, and M. C. Horton to condemn a strip of the land 100 feet wide for its right of way, alleging in its petition that the land was owned by one of another of the defendants in that suit; that the suit proceeded to an award by commissioners of $100 damages which was paid into court for the owner, and the railroad company took possession, and that afterward Barron and Horton "filed an answer in said cause in the nature of an interplea," alleging their ownership of the land both legal and equitable and demanded the fund, while Joseph Murphy and Sarah Murphy, his wife, filed a like pleading asserting their own ownership and claiming the fund. At a trial of these issues on October 23, 1912, the Butler circuit court found that Barron was the owner of that land and awarded the fund to him. This was affirmed on appeal by the Murphys to the Springfield Court of Appeals. 173 Mo. App. 371, 158 S. W. 872. These facts were pleaded in bar as an adjudication of the title to the land and also with other facts as constituting an estoppel in pais.

The answer also pleaded the statute of limitations of ten years by virtue of the provisions of section 1881, c. 21, art. 8, and section 1894, c. 21, art. 9, of the Revised Statutes. The answer to the second count admitted possession and pleaded limitations under the same statute.

Issue was joined by replication.

The following facts are admitted or uncontroverted: On and prior to August, 1901, the plaintiff Joseph Murphy was the owner in fee of the land in suit and is the common source of title. On August 10, 1901, an action was brought against him by the state at the relation of the collector of Butler county to recover delinquent taxes for the year 1899, and summons issued therein on September 5, 1901, returnable at the October term, and was duly served. The action was continued at the return term and until the June term, 1903, when judgment was entered for $8 and costs of suit. On July 31, 1903, a special execution was issued in said cause under which the land was, on October 5th, duly sold by the sheriff to satisfy said judgment. One Green became the purchaser, received a sheriff's deed therefor, dated October 7, 1903, and conveyed to Barron by quitclaim deed, dated October 10, 1903. On July 23, 1902, Murphy was convicted in the Butler circuit court of a felony, and sentenced to a term of two years in the state penitentiary. He was not at that time incarcerated in the penitentiary under this sentence, but was held to answer another charge of felony pending in the same court, in which he pleaded guilty on February 13, 1903, and received a like sentence. He was then sent to the penitentiary upon both sentences, and there remained confined until June, 1905, when he was discharged. On June 26, 1902, the plaintiff, joined by his wife, conveyed the land in suit to Gus Baurton, who, with his wife, executed a deed of trust conveying the same land on the same day to Joseph Murphy and on January 14, 1904, conveyed the same land by warranty deed to both these plaintiffs.

In 1904, at a date not otherwise mentioned in the record, the defendant Barron recovered in the Butler circuit court a judgment by agreement against Gus Baurton and Maggie Baurton, his wife, for the possession of the land in suit. The costs were adjudicated in favor of the Baurtons and against the plaintiff. The Murphys took possession of the land in controversy upon Joseph's release from the penitentiary in 1905, and remained in possession by himself and his tenants up to the spring of 1914, when he was ousted by the sheriff under the judgment obtained by Barron against Baurtons in 1904, and the defendant was placed in possession. The respondent was vice president and general manager of the Butler County Railroad Company, which instituted the suit for condemnation pleaded in the answer in this case, the object of which was to condemn a strip of land 100 feet wide for right of way for the company's railway across this land. Commissioners were appointed to assess the damages, and, after the filing of their report awarding damages in the amount of $100 with respect to this particular tract, respondent and one M. C. Horton filed a motion in the nature of an interplea alleging that they were the owners of the land and that appellants had no right, title, or interest therein. The appellants, at the next term, filed a like plea containing a similar allegation of ownership, and asking that the money, when paid into court, should be awarded to them. A trial was had upon these motions, resulting in a judgment or order declaring Barron to be the owner and ordering the money paid to him when it should be paid into the court. The money was never paid into court. Barron testifies that it was paid to him.

I. This is in form an action to quiet title to 40 acres of land in Butler county, Mo., instituted under the provisions of section 2535 of the present revision of our statutes. The petition, in form, contains two counts; the first being in the usual form in actions under this statute. It also sets out that defendant's claim arises out of a tax judgment rendered against plaintiff while he was incarcerated in the penitentiary of this state under sentence, and asks, in addition to the usual relief, that this judgment be set aside. The second count is the ordinary one in ejectment.

The petition seems to have been framed in this form to take advantage of a favorable opinion of the court on either the legal or equitable theory of the right asserted. The defendant's title might be found vulnerable to attack in equity or void in law. They are entitled, under the section cited, to the same broad relief in either case. I...

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17 cases
  • State ex rel. Brickey v. Nolte, 38252.
    • United States
    • United States State Supreme Court of Missouri
    • 2 Marzo 1943
    ......Wamsley v. Snow, 331 Mo. 261, 53 S.W. (2d) 258; Murphy v. Barron, 275 Mo. 282, 205 S.W. 49; McLaughlin v. McLaughlin, 228 Mo. 635, 129 S.W. 21. (14) The sole effect of the said Missouri statute is to ......
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    ...... property rights of the convict while he is incarcerated, and. nothing more. Wamsley v. Snow, 331 Mo. 261, 53. S.W.2d 258; Murphy v. Barron, 275 Mo. 282, 205 S.W. 49; McLaughlin v. McLaughlin, 228 Mo. 635, 129 S.W. 21. (14) The sole effect of the said Missouri statute is ......
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