Perkinson v. Meredith

• Decision Date: 12 November 1900
• Citation: 158 Mo. 457,59 S.W. 1099
• Parties: PERKINSON v. MEREDITH et al.
• Court: Missouri Supreme Court

59 S.W. 1099

158 Mo. 457

PERKINSON v. MEREDITH et al.

Supreme Court of Missouri, Division No. 1.

November 12, 1900.

MUNICIPAL CORPORATIONS — SPECIAL TAXES — LIEN — FORECLOSURE — PARTIES — SALE — TITLE CONVEYED.

Plaintiff in ejectment purchased land at a sale on special execution issued on a judgment rendered in his favor in a suit on special tax bill, pursuant to the charter of St. Louis, art. 6, § 25, providing that a special tax bill shall become a lien on the property charged therewith, and may be collected of the owner of the land. The record owner of the land was dead, and at the time of her death was a nonresident, of which fact plaintiff was ignorant, and publication was had against such record owner and her grantor, but her heirs were not made parties to the suit. Held, that plaintiff did not acquire title at such sale, since as the record owner was dead, and her heirs were not parties, the owners of the land were not before the court, and their title was not devested thereby.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Ejectment by James E. Perkinson against Julia E. Meredith and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

T. A. Post, for appellant. A. C. Stewart and Isaac H. Orr, for respondents.

ROBINSON, J.

This is an action in ejectment instituted in the circuit court of St. Louis to secure the possession of certain real estate described in the petition. A trial was had by the court, a jury having been waived, which resulted in a finding and judgment for the defendants, and plaintiff appealed. The petition is in the usual form in such case, the answer a general denial. On July 7, 1883, William Collins, who is the common source of title, conveyed the lot in question to J. Oliver, who is described in the deed as being "of the city of Chicago and state of Illinois." Afterwards, on July 11, 1890, John Oliver, described in the deed as being "an unmarried man, of St. Louis, in the state of Missouri," gave a deed of trust on said lot to H. C. Sanford, trustee for Isaac Drexel, of New York; and on the same day John Oliver and S. H. McMillan conveyed said lot, together with other property, by warranty deed to Olive M. Hilton. This deed, however, was not recorded until the 7th day of May, 1894. On July 23, 1894, plaintiff commenced suit in the circuit court of the city of St. Louis against J. Oliver on a special tax bill issued pursuant to an ordinance of the city of St. Louis passed for the purpose of improving Lee avenue in front of the lot in question. In November following an amended petition was filed, making Olive M. Hilton a party defendant. Thereupon publication was made as to both defendants, on the theory, doubtless, that they were nonresidents of the state. On June 17, 1895, judgment by default was rendered against J. Oliver and Olive M. Hilton. This judgment recites that "the court, being now fully advised, doth find that the defendants are indebted to the plaintiff in the sum of fifty-four and eighty-three one hundreths dollars ($54.83), by reason of a special tax bill dated December 20, 1892, and numbered 7,838, herewith filed, and upon which this action is founded, and the court doth further find the same to be a lien upon the real estate described in the amended petition. * * * Whereupon it is now by the court considered that plaintiff do recover the indebtedness aforesaid, found as aforesaid, to wit, * * * and that execution issue therefor, the same to be levied of real estate charged with the lien thereof, and heretofore described." Afterwards, on the 22d day of July, 1895, a sheriff's sale was had under special execution issued on said judgment, and plaintiff became the purchaser, and received a sheriff's deed therefor. On October 9, 1895, the trustee in said deed of trust conveyed said lot, by trustee's deed in the usual form, to Elizabeth Werremeyer, in pursuance of a foreclosure sale under the deed of trust. Afterwards, in December, 1896, Elizabeth Werremeyer conveyed the lot in question to Julia Meredith the defendant herein. The evidence shows that J. Oliver, described in the deed from William Collins as being "of the city of Chicago and the state of Illinois," who executed the deed of trust on the lot in question to H. C. Sanford, trustee of Isaac Drexel, and John Oliver, named in the warranty deed above mentioned to Olive M. Hilton, was one and the same person. It further appears that Olive M. Hilton was dead at the time the tax suit was begun, and that at the time of her death she was a resident of the state of Colorado. The record also shows that at the time the tax suit was commenced, and at the date of plaintiff's purchase at sheriff's sale thereunder, he had no notice or knowledge whatever that J. Oliver and John Oliver was one and the same person, or that Olive M. Hilton was dead.

The plaintiff claims title by purchase at execution sale under sheriff's deed, in pursuance of a sale on special execution issued on the judgment rendered in the suit on special tax bill against J. Oliver and Olive M. Hilton. It is contended by counsel for defendants that no title was acquired by plaintiff's purchase at the sheriff's sale under the judgment in the tax suit, because at the time the suit was begun Olive M. Hilton was dead, and the proper parties defendant were not before the court. On the other hand, the contention of plaintiff, as stated by his counsel, is that "even if the evidence was sufficient to warrant the court in finding that the alleged conveyance to Olive M. Hilton was sufficient to pass title to her to the property in question, and sufficient to warrant the court in finding that she was dead at the time suit was brought against J. Oliver and Olive M. Hilton, nevertheless, inasmuch as the evidence also showed that the title to the property in controversy then stood of record in the name of Olive M. Hilton, and inasmuch as no proof was adduced showing notice to plaintiff of her death at the time when said suit was brought, the court erred in holding that said notice to Olive M. Hilton was not sufficient to subject any such right, title, and interest as may have passed by said deed to said ...