Murphy v. Butler County, 38916

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Hyde, J.
• Citation: 180 S.W.2d 732,352 Mo. 1082
• Parties: Hettie Murphy, Appellant, v. Butler County et al. al
• Docket Number: 38916
• Decision Date: 05 June 1944

180 S.W.2d 732

352 Mo. 1082

Hettie Murphy, Appellant,
v.
Butler County et al. al

No. 38916

Supreme Court of Missouri

June 5, 1944

Appeal from Butler Circuit Court; Hon. Randolph H. Weber, Judge.

Affirmed.

M. W. Henson for appellant.

(1) The foreclosure sale under the school fund mortgage was void because it was made in vacation of the circuit court. Wilcoxon v. Osborn, 77 Mo. 621; McClurg v. Dollarhide, 51 Mo. 347. (2) The foreclosure sale under the school fund mortgage was void for want of legal publication of the notice of sheriff's sale. Chap. 119, Secs. 14968-14969, R.S. 1939. (3) The foreclosure sale under the school fund mortgage was void because no report thereof was made by the sheriff to the county court, and no approval or confirmation of the sale was made by the county court. Waters et ux. v. Talbott, 166 A. 431. (4) The commissioner's deed from H. I. Ruth, commissioner, before an officer authorized to take his acknowledgment conveyed no title because it was executed and delivered without authority from the county court. Chap. 72, Art. 2, Secs. 10378, 10381, and 10389, R.S. 1939. (5) The commissioner's deed from H. I. Ruth, commissioner, to Irvin Waller was and is fraudulent and void, because it was not acknowledged by H. I. Ruth, commissioner, before an officer authorized to take his acknowledgment thereto, and it, therefore, conveyed no title to the land in suit. 1 Am. Jur., pp. 334, 335, secs. 52, 53; Blackman v. Henderson, 87 N.W. 655. (6) The foreclosure sale under the school fund mortgage was never made final by the confirmation of the sale by the county court. 31 Am. Jur., p. 455, sec. 108. (7) The absence of proof of the publication of the sheriff's notice of sale under the school fund mortgage on the record of the sheriff's deeds to Butler County, and the void acknowledgment of the commissioner's deed from H. I. Ruth, commissioner, to Irvin Waller, constitutes such notice to all of the other defendants as would preclude them from invoking the defense of laches. Meriwether v. Overly, 129 S.W. 1, 228 Mo. 218; Saline County v. Thorp, 88 S.W.2d 183. (8) The defense that a claim is stale is purely an equitable one, and unless there is some natural justice back of it, a court of equity will not entertain it. Bucher v. Hohl, 97 S.W. 922, 199 Mo. 320; Schwind v. O'Halloran, 142 S.W.2d 55, 346 Mo. 486.

C. T. Bloodworth and Tedrick & Tedrick for respondent.

(1) Defendants' demurrer to plaintiff's petition should have been sustained since it does not state a cause of action. It attempts to plead "fraud" as grounds for setting aside the sheriff's deed conveying the property in controversy to the defendant Butler County (the only transaction with which plaintiff can be concerned). The allegations of fraud contained in the petition are as follows: "wrongfully, unlawfully and fraudulently caused said property of plaintiff to be sold without due process of law at a purported foreclosure sale under said school fund mortgage." This allegation is merely a conclusion of law and does not set out the facts constituting the alleged fraud, which is necessary in actions of this kind. 27 C.J. 30, 147; Dickey v. Volker, 11 S.W.2d 278; Lewis W. Thompson & Co. v. Conran-Gideon Road Dist., 19 S.W.2d 1049. (2) The petition is also fatally defective for further reason it fails to offer to place the defendant Butler County in status quo, which is a condition precedent to setting aside a deed for fraud. The only allegation in the petition that can be construed to resemble such offer is as follows: "-- and to declare this plaintiff to be the owner in fee simple, subject to the unpaid balance of a school fund loan of $ 700.00 in favor of the defendant Butler County, Missouri." There is no offer to pay the accrued interest, taxes or costs, or any other allegation that can be construed as such offer. Mo. Dig. (Cancellation of Instruments) Key No. 24(2); Fry v. Piersol, 66 S.W. 171; Hawkins v. Heagerty, 156 S.W.2d 642; Davidson v. Gould, 187 S.W. 591. (3) The point that the petition fails to state a cause of action can be raised by demurrer, or at any other stage of the proceedings, even, for the first time, on appeal. Hawkins v. Heagerty, 156 S.W.2d 642. (4) A partial tender or offer is not sufficient. To be effective for any purpose, it must be for the full amount, including interest and costs. St. Louis v. Senter Comm. Co., 124 S.W.2d 1180. (5) Plaintiff is barred from recovery in this case by laches. Kline v. Vogel, 1 S.W. 733; Hatcher v. Hatcher, 39 S.W. 479; Davidson v. Gould, 187 S.W. 591. (6) The fact that this suit was brought within the Statute of Limitations fixing the time in which a suit for the recovery of real estate may be brought, makes no difference in this case, as this is purely an equitable action and the doctrine of laches applies regardless of the statute. Kline v. Vogel, 1 S.W. 733. (7) The defendants Harris, Hayes and Pulliam all testified that they had no knowledge surrounding the foreclosure sale of plaintiff's property, and therefore cannot be charged with notice of fraud, if any existed. Smith v. Holdoway Const. Co., 129 S.W.2d 894; Morris v. Hanssen, 78 S.W.2d 87; Ludwig v. Scott, 65 S.W. 1034. (8) The fact that the foreclosure sale was made in vacation does not render the sale void. Sec. 10385, R.S. 1939; Grant v. Huston, 106 Mo. 97, 16 S.W. 680. (9) There was a legal publication as testified by the witness Bob Wolpers same was introduced in evidence. Sec. 14969 provides that "the affidavit of the publisher, with a copy of such advertisements annexed stating the number and date of the papers, in which the same was published shall be sufficient evidence of the publication," but this statute does not preclude a litigant from making proof by some other method. Sec. 14969, R.S. 1939; Raley v. Guinn, 76 Mo. 263; Robbins v. Boulware, 190 Mo. 33, 88 S.W. 674; McDaniels v. Sprick, 297 Mo. 424, 249 S.W. 611. (10) The statute of this State does not require a report to be filed and approved by the county court in order to validate a sale under a school fund...