Pike v. Martindale

• Decision Date: 15 November 1886
• Citation: 1 S.W. 858,91 Mo. 268
• Parties: PIKE and others v. MARTINDALE and others.
• Court: Missouri Supreme Court

1 S.W. 858

91 Mo. 268

PIKE and others v. MARTINDALE and others.

Supreme Court of Missouri.

November 15, 1886.

1. PLEADING — PARTIES — DEMURRER — OBJECTION WAIVED.

An objection that an action is not brought in the names of the proper parties should be raised by demurrer or answer, and cannot be raised for the first time upon the trial.

2. JURY — WAIVER OF — FAILURE TO OBJECT — TRIAL BY COURT.

Where, in an action for cancellation of deeds, and to vest title in plaintiff, the court, without a jury, has determined the issues of law, and fixed the damages and rents and profits, and no objection has been taken thereto at the trial, nor exception then saved, the defendants must be held to have waived a jury trial as to the law issues.

3. TAXATION — COLLECTION — ASSESSMENT — VALIDITY — SALE AND DEED.

An assessment of lands for taxes, founded upon an assessment which was not returned verified as required by the law of Missouri, is invalid, and a tax sale and deed based upon such invalid assessment is void. State v. Cook, 82 Mo. 185, followed.

4. VENDOR AND VENDEE — DEFECTIVE DEED — PURCHASER WITH NOTICE.

A court of equity will grant relief to parties claiming under an instrument neither sealed, acknowledged, nor recorded, as against the vendor, and purchasers from him, with notice or knowledge of their claim.

5. CHAMPERTY AND MAINTENANCE — ALLEGED IN ANSWER — MOTION TO STRIKE OUT.

A motion to strike out a portion of the answer of defendant in an ejectment suit, setting up a champertous agreement between the plaintiff and his counsel, is well sustained, and the evidence offered thereon well excluded, provided the plaintiff's title by which he seeks to enforce his right is not affected by such contract.

Appeal from Buchanan circuit court.

Suit to cancel deeds, and vest title in plaintiffs. Judgment for plaintiffs. Defendants appeal.

Strong & Mosman, for respondents, Pike and others. R. S. Musser, for appellants, Martindale and others.

RAY, J.

This suit was instituted by plaintiffs against defendants for the purpose of canceling certain deeds, and vesting in plaintiffs the legal title to certain lands described therein, and situated in Andrew county, Missouri. There is a separate count in the amended petition which contains the ordinary allegations in ejectment proceedings.

The land was patented by the United States to Eugene R. Boissat, of Alexandria, Louisiana, under whom the plaintiffs and defendant Cook claim title. The other defendants disclaim any interest in the proceeding. E. R. Boissat, the original owner of the land in question, paid no taxes upon it after the beginning of the war, and it remained unoccupied. In September, 1873, the said Boissat executed and delivered to William S. Pike, of New Orleans, Louisiana, the instrument under which the plaintiffs claim title as heirs at law of the said William S. Pike, which said instrument was neither sealed, acknowledged, nor recorded. It may be stated, in this connection, that defendant further claims that said deed was intended as a security for a debt due from said Boissat to the firm of Pike, Brother & Co., a banking firm in New Orleans. In December, 1877, a tax deed was executed by the collector of Andrew county to the defendant Cook, based on a sale of the land for taxes made in the year 1875 for the taxes of 1874. As to this deed plaintiffs say that the same is void for want of substantial compliance with the revenue law; that said land was never sold at the tax sale, but was forfeited to the state; and that defendant's tax deed was fraudulently obtained.

In March, 1877, there was filed in the office of the recorder of deeds of Andrew county a certain instrument purporting to be a deed from Eugene R. Boissuit, of Arkansas, to John Inglehart, of St. Louis, Missouri, under which neither of the parties to this action claim, and which both plaintiffs and defendant charge is a forgery. In September, 1879, Eugene R. Boissat and wife, Virginia, executed and delivered to the defendant Cook a conveyance containing the statutory covenants for title implied by the words "grant, bargain, and sell," which said deed was on the eleventh day of September, 1879, duly recorded in the land records of Andrew county.

In their amended petition plaintiffs charge, in substance, that they are the heirs at law of W. S. Pike, who died in New Orleans in 1875; that they are the equitable owners of the land in question by virtue of a deed made on the _____ day of September, 1873, by Eugene R. Boissat to their ancestor, William S. Pike; that, for the reason that said deed was neither acknowledged nor sealed, they were unable to have it recorded; that the defendants, each and all of them, had full notice and knowledge thereof, and of the ownership, etc., of the plaintiffs, and, having such knowledge, conspired and confederated together to procure from said Eugene R. Boissat, or some person who fraudulently and falsely personated him, a deed conveying said land; that in pursuance of said conspiracy the defendant Martindale procured to be executed and filed for record, about March 9, 1877, an instrument purporting to be a deed from Eugene R. Boissat to John Inglehart, which deed was a forgery, etc.; that defendants, with design to further becloud plaintiffs' title, fraudulently procured to be executed and delivered to defendant Cook, a deed from Joseph L. Bennett, collector of the revenue; that the recitals in said tax deed were untrue, etc.; that the land was not assessed, returned delinquent, nor was any judgment rendered against the same, nor the land sold as recited, but that, after said lands were declared forfeited to the state for want of bidders, defendant Martindale, representing his co-defendants, and in furtherance of said fraudulent designs, etc., did, in his own handwriting, falsely write upon the tax-book and collector's list for sale, and opposite the descriptions of said lands, a memorandum to the effect that defendant Cook was a bidder for the purchase of said land, and thereby procured and caused said collector to execute to said Cook said tax deed, etc.; that thereafter, and with full knowledge of all the aforesaid facts, and with the design to further complicate plaintiffs' title, etc., defendant Martindale, on the fourth day of September, 1879, procured from said Eugene R. Boissat, grantor of plaintiffs' ancestor, an instrument purporting to be a warranty deed duly signed, sealed, and acknowledged, conveying said land to defendant Cook, etc.; that said deed was voluntary, and without consideration, etc.; that said Martindale, in order to procure said conveyance from said Boissat to said Cook, knowingly and falsely represented that the words "grant, bargain, and sell," which were in said deed, were in legal effect, under the laws of this state, equivalent to a deed of quitclaim only; that said Cook is not entitled to claim title under said deed as an innocent purchaser, and that said deed ought to be canceled. As before stated, the second count is in the usual form prescribed by the statute in actions of ejectment.

The separate answer filed by the defendant Martindale denies each and every allegation in plaintiffs' petition, and states that he has no interest in the land in controversy, and asks to be dismissed, with costs. The separate answer of the defendant King is the same.

The separate answer of defendant Cook denies each and every allegation in plaintiffs' petition except those admitted; states that he is the owner and in actual possession of the land, for valuable consideration, and without any actual or constructive notice of any legal or equitable title in plaintiffs; that the first information that he had that plaintiffs claimed title to said land was when he was served with summons in this action; that he received actual possession of said land about January 1, 1878, and is still in lawful possession of the same; that he has paid taxes on same amounting to $125, and made permanent improvements and expended money thereon to the amount of $300; admits that there was filed for record and recorded in the recorder's office in Andrew county, on March 9, 1877, a false, forged, and fraudulent deed, purporting to have been made by one Eugene R. Boissuit to John Inglehart; denies that he had any knowledge of said forged deed until the date it was placed of record; avers that plaintiffs, their agents and attorneys, conspired and confederated together for the purpose of procuring paper title to said lands, and, to defraud this defendant, procured and caused said fraudulent deed to be made and filed for record; that on the twenty-fourth day of December, 1877, by virtue of a purchase made by him at a tax sale made in Andrew county by the collector of said county, the collector made, executed, and delivered to him a deed for said lands, and that said deed was filed for record December 24, 1877; that on the fourth day of September, 1879, Eugene R. Boissat made a warranty deed conveying said lands to him for a valuable consideration; that he had no notice, actual or constructive, of the alleged equitable or legal title in the plaintiffs, or their ancestors, at the time he received said deed, and paid the consideration therefor; that this cause was instituted, and is prosecuted and maintained, by and in pursuance of an unlawful and champertous agreement made and entered into by and between plaintiffs and W W. Caldwell, the senior counsel for the plaintiffs, whereby said Caldwell agreed with plaintiffs to prosecute and maintain said suit in their name for one-half the land recovered, and to pay all costs and expenses incidental to said suit, whether or not plaintiffs obtain a decree or judgment for said land, and to charge nothing for his services if the land be not recovered; that plaintiffs had knowledge of the defendants' title to said land from and after the said tax sale. They refused to pay any taxes on said land, or set up any title to the same,...