Proctor v. Nance

• Decision Date: 30 March 1909
• Citation: 220 Mo. 104,119 S.W. 409
• Parties: PROCTOR v. NANCE et al.
• Court: Missouri Supreme Court

119 S.W. 409

220 Mo. 104

PROCTOR v. NANCE et al.

Supreme Court of Missouri, Division No. 2.

March 30, 1909.

Rehearing Denied May 18, 1909.

1. TAXATION (§ 764)—VALIDITY OF TAX PROCEEDINGS—DESIGNATION OF OWNER.

Where the proceedings for the sale of land for taxes and the deed pursuant thereto designated the landowner as "R. L. Hall," the deed is insufficient to convey the title of record of "Robert Lee Hall."

2. TAXATION (§ 796)—TAX TITLE—RIGHT TO ATTACK—ESTOPPEL—ACCEPTANCE OF SURPLUS.

Though the proceedings for the sale of land for taxes are insufficient to convey the title, because the owner is designated therein by his initials only instead of his full name, where the owner ratifies the sale by accepting the surplus proceeds over the amount of taxes and costs, he and his subsequent grantee are estopped to question the validity of the sale, though the owner did not know at the time of accepting the surplus that the sale was void.

3. VENDOR AND PURCHASER (§ 224)—BONA FIDE PURCHASER—QUITCLAIM DEED.

A grantee under a quitclaim deed after sale of the land for taxes and the recording of the tax deed is not an innocent purchaser without notice.

4. TAXATION (§ 796)—TAX TITLE—ESTOPPEL TO ATTACK—ACCEPTANCE OF SURPLUS—EFFECT OF TENDER BACK.

Where the landowner ratified a void tax sale by accepting the surplus of the proceeds, the effect of such ratification cannot be avoided by a subsequent grantee under a quitclaim deed, in an action to quiet title, by tendering such surplus into court to be repaid to the county.

Appeal from Circuit Court, Ripley County; J. C. Shepard, Judge.

Action by William O. Proctor against James M. Nance and Barney Smith. From a judgment for defendants, plaintiff appeals. Affirmed.

John M. Atkinson, for appellant. Thos. F. Lane and Alfred Perkins, for respondents.

GANTT, P. J.

This is a suit brought under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to quiet the title to the S. W. ¼ of the N. W. ¼ of section 28, township 23, range 3, E., in Ripley county, Mo. The defendants were both personally served with the writ of summons. The petition alleges that the plaintiff is the owner in fee simple of and claims title to the said 40 acres of land, and that the same is not in the actual possession of any person or persons, but is wild and uncultivated; that the defendants claim some title and the estate in said real estate, the nature and character of which is unknown to plaintiff, and cannot be described except that it is adverse and prejudicial to plaintiff. The prayer was that the court should try, ascertain, and determine the title and interest of the plaintiff and the defendants respectively, and by its decree adjudge the same. The defendant Smith disclaimed any interest or title in the land. The defendant Nance filed the following amended answer: "Now at this time comes defendant, and, by leave of court first had and obtained, files his amended answer to plaintiff's petition, and denies each and every allegation therein contained. Further answering, defendant says that he is the owner of the land described in said petition in fee simple. Further answering, defendant says that plaintiff is estopped from setting up or claiming any right, title, or interest in or to said land because at the time he obtained the quitclaim deed under which he claims, signed by Robert Lee Hall, said land had prior thereto been legally sold for delinquent and back taxes, and a sheriff's deed made and delivered therefor to this defendant; that at the time plaintiff took the quitclaim as aforesaid from Robert Lee Hall he knew he was the same person mentioned in the proceedings to enforce the state's lien for delinquent and back taxes, and called in said proceedings R. L. Hall, and that defendant's sheriff's deed was recorded in the deed records of Ripley county in Book 5 at page 421, on the 17th day of March, 1905; and that plaintiff took said quitclaim deed for a nominal consideration, and with full notice of all the facts surrounding the making of said sheriff's deed under which this defendant holds. Defendant further says that there was a surplus arising from the sale of the said land by the sheriff under the tax proceedings before mentioned in the sum of $4.75, which was paid over to one Jane Hall upon the order of R. L. Hall, who was the same person as Robert Lee Hall, and the same person who was sued in the tax proceedings aforesaid. Defendant further says that plaintiff well knew the fact that R. L. Hall or his assigns had received the surplus money arising from the sale aforesaid when he received the quitclaim deed aforesaid from the said Hall, and then and there knew that the said Hall had recognized the validity of the service and notice in the tax sale, and the judgment and sale thereunder. Wherefore defendant prays the court to adjudge, order, and decree that the defendant has the full legal and equitable title in and to said land described in plaintiff's petition, and that plaintiff is forever estopped from setting up or claiming any right, title, or interest in or to said land, and for costs of this suit." To this plaintiff filed the following replication: "Now at this day comes the plaintiff, and, for his amended reply to the new matter set up in the answer of defendant James M. Nance herein, denies each and every allegation thereof, except those which are hereinafter set out and specifically admitted. Plaintiff, further replying, admits that there was a surplus of $4.75 derived from the sale of the land in this suit by the sheriff of Ripley county, and that said sum was paid over by said sheriff to the county treasurer and credited by said treasurer to the surplus trust fund of said county, and that said surplus was paid to one Jane Hall on the order of Robert Lee Hall, the grantor under whom the plaintiff claims title; but plaintiff states and avers the fact to be that at the time the said Robert Lee Hall authorized the payment of said surplus he had no knowledge or information that the said sale of land in this suit by said sheriff and the order of publication therein was void, and that said sale did not pass any title from said Hall; that said Hall is an uneducated person, and by accepting said surplus did not thereby intend to ratify said illegal sale of a valuable tract of land for a mere nominal sum of $4.75. Plaintiff, further replying states and avers that at the time he bought the land in suit he had no knowledge or information that there was any surplus from said sale, or that said Robert Lee Hall had ever authorized the refund of said surplus, and that neither the said Robert Lee Hall nor this plaintiff should in equity be estopped from claiming said land by reason of the refund of said surplus; but this plaintiff for said Robert Lee Hall and himself hereby tenders into court the said surplus of $4.75, being the amount refunded to said Hall as aforesaid, and asks the court to order same paid by the clerk of this court to the county treasurer that same may be credited to the surplus trust fund of said county. Plaintiff, having fully replied, prays for judgment in accordance with the prayer of his petition." On the trial it was admitted that Robert Lee Hall was and is the common source of title to said tract of land. It was then stipulated between counsel for the plaintiff and the defendant that the matters pleaded in the amended replication were true, and might be considered as evidence in the case subject to an objection to the relevancy of the matters therein stated because they constituted no defense in law and no estoppel.

Plaintiff then introduced a quitclaim deed from Robert Lee Hall to plaintiff of date March 18, 1905, recorded March 30, 1905, in the deed records of Ripley county, whereby Robert Lee Hall in consideration of $2 and other valuable considerations to him paid by plaintiff, the receipt of which was acknowledged, remised, released, and quit-claimed unto the plaintiff the said 40 acres of land. Plaintiff also made a tender in open court of $4.75, being the amount refunded said Robert Lee Hall under the tax sale. The defendants to maintain the issues on their part offered and read in evidence a sheriff's deed of date April 7, 1903, and filed for record March 17, 1905, and recorded in Book No. 5, page 421, of the deed records of Ripley county, by Neely Moore, sheriff of Ripley county to James M. Nance, conveying the land in controversy. This deed recited the judgment of the circuit court of Ripley county on the 6th day of December, 1902, in favor of the state of Missouri at the relation and to...