Queen City Inv. Co. v. Kreider
| Decision Date | 13 October 1930 |
| Docket Number | 28967 |
| Citation | 31 S.W.2d 1002 |
| Parties | QUEEN CITY INV.CO. v. KREIDER et al |
| Court | Missouri Supreme Court |
Frank B. Williams and A. P. Stone, Jr., both of Springfield, for plaintiff.
Sturgis & Henson, of Springfield, for defendants.
WHITE J., concurs. WALKER, J., absent.
This suit was begun as an action in two counts, to determine title and in ejectment. George W. Kreider and Louanna Kreider were the original defendants. J. McGee Evans was later made a defendant, and all defendants filed a joint answer and cross-bill wherein equitable relief was sought. The count to determine title was later dismissed by plaintiff. The trial court found for defendants on plaintiff's count in ejectment, and on defendants' answer and cross-bill found that the Kreiders were the owners of the land subject to a deed of trust in favor of defendant Evans, and set aside the sheriff's deed to plaintiff, but allowed plaintiff certain items of taxes and costs which it had paid. All parties appealed.
Evans was the record owner of the property involved, which was a tract of land of about 34 acres southwest of and about a mile from the city limits of Springfield. In 1925 a suit for the 1922 and 1923 state and county taxes was brought by the collector against Evans as sole defendant. He was a resident of Clay county, Mo., and was personally served with summons in that county. He failed to appear in the Greene county circuit court and judgment for the amount of such taxes was rendered by default several months afterward. A special execution was thereafter issued, and the land was advertised for sale. and in March, 1926, was sold to plaintiff at said execution sale for $ 600.00. The judgment and costs at that time amounted to $ 153.80.
Defendants Kreider, who are husband and wife, were in possession of the land at the time of the tax suit and the execution sale, and claimed to have been in possession as owners thereof from April 12, 1921, at which date they purchased the land from Evans. Defendants' evidence tended to show that on April 12, 1921, Evans and his wife executed, acknowledged, and delivered a warranty deed to George W. Kreider, conveying the land in suit. The description of the land was omitted because of the inability of the parties at that time to insert the legal description. The agreement was that the Kreiders were to pay $ 7,200 for the land. The sum of $ 200 was to be paid down and two notes for $ 1,000 each and one note for $ 5,000, with interest from date, were given by the Kreiders. They executed and delivered a deed of trust in favor of Evans and duly acknowledged the same, but omitted a description of the land, as was done in the case of the warranty deed to them. John Schmook, then a practicing attorney of Springfield, was authorized to fill in the description of the warranty deed and the deed of trust. He retained the deeds and notes in his possession and did not fill in the description of the land in either of the deeds for over five years, and did not do so then until just before said deeds were filed for record after the present suit was instituted. All of the parties to the alleged sale testified that the sale of the land and deliveries of the warranty deed and the deed of trust were actually consummated on April 12, 1921. Only $ 75 were paid to Evans. No part of the principal or interest due on the notes was ever paid by the alleged purchasers. The Kreiders had been tenants of Evans for several years before the alleged sale, and continued in possession of the land after such sale and during all the time thereafter up to and including the time of the trial. The land was fenced and cross-fenced, but there were no buildings upon it.
The explanation of Evans for his default in the tax suit was that he supposed the Kreiders would pay the taxes and look after the suit, although he did not notify them that summons had been served on him. The Kreiders knew they had paid no taxes. They were ignorant of the pendency of the tax suit against Evans, the record owner, and knew nothing of the judgment or the sale under the special execution.
Defendants suggest that plaintiff's motion for a new trial in the case at bar was not filed in time. Judgment was entered October 8, 1927, and said motion was filed October 13, 1927, or five calendar days after the judgment was rendered. Judicially noticing the calendar for 1927, we find that October 9th was Sunday. While the four days, prescribed by section 1456, Rev. St. 1919, for filing motions for a new trial, mean, four calendar days and not four judicial days ( Long v. Hawkins, 178 Mo. 103, 77 S.W. 77; Ewart v. Peniston, 233 Mo. 695, loc. cit. 704, 136 S.W. 422), the rule is that an intervening Sunday is not counted in the four-day period, even though it is not the last day ( State v. Harris, 121 Mo. 445, 26 S.W. 558; Ewart v. Peniston, supra; National Bank v. Williams, 46 Mo. 17; Cattell v. Publishing Co., 88 Mo. 356; Maloney v. Missouri Pacific Railway Co., 122 Mo. 106, loc. cit. 115, 26 S.W. 702). The motion for new trial was filed in time.
Plaintiff assigns error because the trial court sustained the motion of the defendants Kreider and of J. McGee Evans to make Evans a party defendant and later refused to sustain plaintiff's motion to strike out the joint answer of all of said defendants, after plaintiff had dismissed the first count of its petition. This was the count to determine title. Both assignments challenged the right of Evans to be made a party defendant over plaintiff's objection.
Defendant Evans certainly claimed an interest in the property in controversy, and that interest was adverse to plaintiff's claim of title. If the purported sale of April 12, 1921, to the Kreiders was a mere sham, as plaintiff contends, then Evans was the owner of the land, and the Kreiders were only his tenants, and Evans had the right to be made a party defendant and to resist plaintiff's count seeking ejectment of his tenant. Section 1819, Rev. St. 1919; Hill v. Atterbury, 88 Mo. 114; Boas v. Branch (Mo. Sup.) 208 S.W. 75. If the sale to the Kreiders was bona fide and the legal title passed to them, then Evans had an interest in the land as beneficiary in the deed of trust, which was adverse to plaintiff's claim of absolute ownership.
Section 1158, Rev. St. 1919, provides that 'any person may be a defendant who has or claims an interest in the controversy adverse to the plaintiff. * * *' As sustaining their contention that said section 1158 authorizes the bringing in of Evans as a party defendant, defendants cite Bondurant v. Mills (Mo. App.) 294 S.W. 742; State to use v. Hudson, 86 Mo.App. 501; Cape Girardeau Railroad v. Hatton, 102 Mo. 45, 14 S.W. 763; Green v. Conrad, 114 Mo. 651, loc. cit. 665, 21 S.W. 839; Wegenka v. St. Joseph (Mo. App.) 212 S.W. 71; and State ex rel. Shipman v. Allen, 124 Mo.App. 465, 103 S.W. 1090. See also National Bank v. Maryland Casualty Co., 307 Mo. 417, 270 S.W. 691, loc. cit. 698.
These cases sustain the right of a person interested in a controversy adversely to the claim of the plaintiff to be made a defendant on his own motion and over the objection of the plaintiff, where it would result in an injustice to such person to deny the motion and where all issues may be settled in one action and avoid a multiplicity of suits.
Plaintiff relies on Clelland v. Clelland, 291 Mo. 312, 235 S.W. 816, and Addison v. Dent County Savings Bank, 205 Mo.App. 622, 226 S.W. 322. There is nothing in the Clelland Case to aid plaintiff. It was held that the alleged error in permitting a party defendant to go into the case over plaintiff's objection was not saved for appellate review, and that this court was therefore precluded from considering the contention.
In the Addison Case it was ruled that the original bank defendant could make every defense in its own behalf which could be made by the plaintiff's wife, who was permitted to go in as a party defendant. That is not true in the case at bar. Injustice would have been done by denying the defenses peculiar to Evans. The trial court did not err in the case at bar in permitting Evans to come in as a defendant.
After Evans had thus been properly made a party defendant, plaintiff could not dismiss the count in his petition, which authorized him to be brought in as a party defendant, and thus avoid the affirmative relief asked by defendants in their cross-bill. Graves v. Chapman, 248 Mo. 83, loc. cit. 94, 154 S.W. 61; State ex rel. v. McQuillin, 246 Mo. 517, loc. cit. 536, 152 S.W. 347.
Defendants interposed a number of defenses to plaintiff's suit. Among others, it was contended that, at the sale under the special execution on the tax judgments, the sheriff should first have offered a part of the 34-acre tract for sale because such part would have brought more than enough to satisfy the judgment and costs; and further contended that the sale of the entire tract for $ 600 constituted a fraud upon the rights of defendants, was a sale at a grossly inadequate price, and that the sale should be set aside for both of such reasons.
The conduct of the parties was very unusual, and might have justified a finding by the trial court that there was no sale of the property to the Kreiders. But the trial judge saw the witnesses and heard them testify, and was personally acquainted with Judge Schmook, who was then a member of his bar, even if he was not acquainted with Evans and the Kreiders. He was in a much better position than we are to determine the weight and credit to which the oral testimony of the witnesses was entitled. We therefore very properly defer somewhat to the findings of the trial chancellor. Weighing the evidence by such considerations, we think the trial court was justified in finding...
To continue reading
Request your trial