Richards v. Earls

• Decision Date: 03 November 1939
• Docket Number: 35820
• Citation: 133 S.W.2d 381,345 Mo. 260
• Parties: L. A. Richards and Francis Steele v. Alvin T. Earls, Walter S. Edwards, A. J. Sittner and Jesse Sittner, Appellants
• Court: Missouri Supreme Court

133 S.W.2d 381

345 Mo. 260

L. A. Richards and Francis Steele v. Alvin T. Earls, Walter S. Edwards, A. J. Sittner and Jesse Sittner, Appellants

No. 35820

Supreme Court of Missouri

November 3, 1939

Appeal from New Madrid Circuit Court; Hon. Louis H. Schult Judge.

Affirmed.

R F. Baynes and R. P. Smith for appellants.

(1) The Little River Drainage District had no power to purchase the lands in question at the tax sale through and in the name of its tax attorney as trustee. (a) The power to purchase at tax sales, as all other powers of a drainage district exists only by and through a statute. R. S. 1929, secs. 10766, 11020; Holly v. Rolwing, 87 S.W.2d 654; Drainage Dist v. Hetlage, 102 S.W.2d 708. (b) The Little River Drainage District is a municipal corporation. State ex rel. v. Little River Drainage Dist., 269 Mo. 444, 190 S.W. 897. (c) A municipal corporation can acquire, hold and sell real estate only for carrying out the corporate, public purposes, nor for profit. McQuillin on Mun. Corp. (2 Ed.), sec. 1216; Kennedy v. Nevada, 281 S.W. 56; R. S. 1929, sec. 10768. (d) The express provisions of a statute authorizing purchase of land at tax sale by a municipal corporation, must be strictly followed. McQuillin on Mun. Corp. (2 Ed.), sec. 1209. (e) A municipal corporation cannot purchase land for itself in the name of a third person as trustee. McQuillin on Mun. Corp. (2 Ed.), sec. 1207; Louisville v. University, 54 Ky. 642. (2) Persons who deal with a drainage district are bound to take notice of the limits of its authority, and in matters outside its authority they deal with it at their peril. Drainage Dist. v. Daudt, 74 Mo.App. 586. (3) Absent fraud or concealment of title, a purchaser at a tax sale takes only the interests of the defendants properly served in the suit. Berlien v. Bierler, 96 Mo. 491, 9 S.W. 916; Graves v. Ewart, 99 Mo. 13, 11 S.W. 971; Moore v. Woodruff, 146 Mo. 603, 48 S.W. 489; Wilcox v. Phillips, 260 Mo. 664, 169 S.W. 55. (4) One who takes title by a quitclaim deed, takes subject to all the defects in his grantor's title, including estoppel of the grantor. Zweigart v. Reed, 221 Mo. 33, 119 S.W. 964; Witte v. Storm, 236 Mo. 493, 139 S.W. 384; Proctor v. Nance, 220 Mo. 104, 119 S.W. 409; Austin v. Loring, 63 Mo. 48. (5) By asserting in the second tax suit that the first tax suit and the deeds made pursuant thereto were void, and by the payment of the taxes sued for in such second tax suit by defendants in reliance on that assertion, the Little River Drainage District and plaintiffs who claim under it, became and are estopped to assert the validity of that title. State ex rel. v. Haid, 41 S.W.2d 808; 21 C. J. 1119, sec. 122; 10 R. C. L. 689, sec. 19; State ex rel. Nolen v. Nelson, 310 Mo. 526, 275 S.W. 927; Green v. St. Louis, 106 Mo. 454, 17 S.W. 497; State v. Baird, 288 Mo. 62, 231 S.W. 628; Wilson v. McDaniel, 190 S.W. 3; Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1045. (6) The fact that at the time of the instituting of the tax suit in question and under which the sale of this real estate was had, by which plaintiffs claim title, the note and deed of trust had been endorsed and assigned to the Himmelberger-Harrison Lumber Company, who was then the legal owner and holder of said note and deed of trust, but who was not made a party to the tax suit nor served with process makes it impossible for them to be affected. Sec. 9933, R. S. 1929; Taff v. Tallman, 209 S.W. 826, 277 Mo. 163; Stafford v. Fizer, 82 Mo. 399; Williams v. Hudson, 93 Mo. 529; Hilton v. Smith, 134 Mo. 507; Allen v. McCabe, 93 Mo. 144; Boatman's Savings Bank v. Grewe, 84 Mo. 478; Landau v. Cottrill, 159 Mo. 315; State v. Springfield Convention Hall Assn., 257 S.W. 113; Gireldin v. Howard, 103 Mo. 43; State ex rel. v. Reynolds, 213 S.W. 68; Darrie v. Whitton, 13 S.W.2d 47; Little River Drainage District v. Sheppard, 7 S.W.2d 1014; Zweigart v. Reed, 221 Mo. 33; Stuart v. Ramsey, 196 Mo. 404; Keaton v. Jorndt, 168 S.W. 734; Mo. Real Estate & Loan Co. v. Gibson, 220 S.W. 675; Adams v. Gossom, 228 Mo. 566.

R. B. Oliver, III and H. C. Riley for respondents.

(1) The statutory method as followed in foreclosing the lien of the little river drainage district for taxes. Secs. 9953, 10765, R. S. 1929. (2) Suit against the record owner when true owner unknown binds the holder of a unrecorded instrument. Koch v. Jenkins, 300 S.W. 472; Millerson v. Doherty Land Co., 241 S.W. 908; Keaton v. Jorndt, 259 Mo. 200; Vance v. Corrigan, 78 Mo. 98; Stafford v. Fizer, 82 Mo. 399; State ex rel. Hunt v. Sack, 79 Mo. 663. (3) Equitable estoppel is an affirmative defense and must be pleaded unless such facts appear from the case made by the plaintiff. State ex rel. School District v. Haid, 41 S.W.2d 809; Grafeman Dairy Co. v. Northwestern Bank, 288 S.W. 363; Mo. C. Loan Co. v. Great Southern L. Ins. Co., 52 S.W.2d 11. (4) Where parties have equal means of knowledge there is no estoppel in favor of either. And party asserting same must have been misled or taken some action to his injury. Wilkerson v. Liberman 37 S.W.2d 536; Fisher v. Ely-Walker D. G. Co., 46 S.W.2d 906. (5) A statute or ordinance will not be given a construction which will make it unreasonable or an absurdity. State ex rel. v. McKay, 52 S.W.2d 230; Steck v. General Baking Co., 283 Mo. 410.

Merrill Spitler and Ward & Reeves amici curiae.

(1) Appellants contend in their brief that no title passed to R. P. Smith because the statute required the tax deed to be made to the drainage district. Now of course Smith could buy in his own name, because he has the legal capacity to take as grantee in the instrument, and if he in fact took the title for the benefit of the district then the latter was undoubtedly the equitable owner. When the legal title was thereafter conveyed to the district then the latter had both the legal and equitable title under the doctrine of merger. The title was then where the statute required it to be placed, since the district paid the purchase price at the tax sale. It does not lie in the mouth of the grantor or other persons to question the title thus acquired by the district. Besides, it is held as a general principle of law that only the State and not the grantors in a deed, nor their privies, can question the title thus acquired by a municipality. General Am. Life Ins. Co. v. Dunklin County, 339 Mo. 297; Hafner v. St. Louis, 161 Mo. 34; Land v. Coffman, 50 Mo. 243; 3 Dillon on Municipal Corporations (5 Ed.), p. 1580, sec. 990. (2) Under the pleadings in this case only the legal title to the land in question was made an issue. No facts are pleaded in the defendants' answer giving the right of equitable redemption. In appellants' motion for new trial no error is claimed on the ground that the trial court did not decree defendants to have the right of redemption, nor is such matter contained in the assignment of errors or in the brief of appellants in this court. Since the only error claimed in the trial court and in this court by appellants is that the trial court erroneously adjudicated the legal title to be in respondents instead of appellants, then that is the only question that this court may pass upon in determining the case here; and since the purchaser at the tax sale acquired the better legal title than did the purchaser at the foreclosure sale, the judgment of the trial court should be affirmed, without going into the matter here of the right of appellants to redeem the property. Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 472; Myers v. Bassett, 84 Mo. 479; Cowell v. Gray, 85 Mo. 169; Allen v. McCabe, 93 Mo. 138; Williams v. Hudson, 93 Mo. 524; Paxton v. Fix, 190 S.W. 328.

Edward F. Sharp and C. M. Buck amici curiae.

(1) The holder of a deed of trust on real estate is a necessary party to a suit for taxes and if not made a party, his interests are not effected by the judgment rendered in the tax suit and he has the right to redeem from the tax sale. Stafford v Fizer, 82 Mo. 399; Allen v. McCabe, 93 Mo. 144; Boatmen's Savings Bank v. Grewe, 84 Mo. 478; Giraldin v. Howard, 103 Mo. 45; Landau v. Cattrill, 159 Mo. 315; State ex rel. v. Reynolds, 213 S.W. 69; Barrie v. Whitton, 13 S.W.2d 47; State ex rel. v. Springfield Convention Hall Assn., 257 S.W. 113; Little River Drainage District v. Sheppard, 7 S.W.2d 1014; Mo. Real Estate & Loan Co. v. Gibson, 220 S.W. 677, 282 Mo. 75; Bell v. Ham, 188 Mo.App. 71, 173 S.W. 744; Williams v. Hudson, 93 Mo. 529; Taff v. Tallman, 277 Mo. 163, 209 S.W. 868; Hilton v. Smith, 134 Mo. 507; Zweigart v. Reed, 221 Mo. 45; Keaton v. Jorndt, 168 S.W. 738; Stuart v. Ramsey, 196 Mo. 417; Construction Co. v. Ice Rink Co., 242 Mo. l. c. 253; Adams v. Gossom, 228 Mo. 566. (2) The rule permitting the taxing authority to sue the owner as shown by the record has never been held to apply to one whose title is not required to be placed of record. For example it does not apply to: (a) Heirs of a deceased title record holder. (b) Parties whose title is based on adverse possession. (c) Where the taxing authorities knew that the party appearing of record to be the owner, was not the actual owner. (d) Where the purchaser at the tax sale has knowledge of an outstanding title not of record. (e) Anyone whose title is based on an instrument not necessary to be recorded in the local land records. Williams v. Hudson, 93 Mo. 527; Bell v. Ham, 173 S.W. 744, 188 Mo.App. 71; Adams v. Gossom, 228 Mo. 566; Perkinson v. Meredith, 158 Mo. 457; Gay v. Cantwell, 191 Mo. 898. (3) There is no law in this State requiring that an assignment of a note secured by a deed of trust be placed of record and absent such requirement, recording would not be constructive notice of such assignment. Holmes v. Doe Run Lead Co., 223 S.W. 779; Brown v. Baldwin, 121 Mo. 115; Mason v....