Robinson v. Burton

• Decision Date: 06 March 1940
• Docket Number: 35799
• Citation: 139 S.W.2d 942
• Parties: ROBINSON et al. v. BURTON et al
• Court: Missouri Supreme Court

139 S.W.2d 942

ROBINSON et al. v. BURTON et al

No. 35799

Supreme Court of Missouri, First Division

March 6, 1940

Motion for Rehearing Overruled May 7, 1940.

David W. Wilhite and George McIlrath, both of Kansas City, for appellants.

Carl R Johnson, of Kansas City, for respondents.

HYDE and BRADLEY, CC., concur.

OPINION

DALTON, Commissioner.

This is an action in equity to quiet title to certain real estate in Cowherd's Woodland Avenue Addition to Kansas City Missouri, and to secure an injunction against further interference with the property by defendants. The trial court found for plaintiffs, and made a temporary injunction permanent. C.W. Robinson and People's Finance Corporation are plaintiffs and Ruth M. Burton and her attorneys, David W. Wilhite and George D. McIlrath, are defendants. Only Ruth M. Burton has appealed.

Only a part of the evidence offered on behalf of plaintiffs appears in appellant's abstract of the record, but from the exhibits, a stipulation, and testimony shown, the following appears: One Lyons is the common source of title. C.W. Robinson purchased the real estate for $ 500 on January 10, 1934, at a foreclosure sale under a deed of trust executed by said Lyons. To obtain part of the purchase price, a deed of trust was then executed by C.W. Robinson to People's Finance Corporation, and it claims a lien on the premises. After the said foreclosure sale, and the execution of said deed of trust to the corporation, Lyons brought a suit to set aside the sale and the trustee's deed. In this proceeding he was represented by defendant Wilhite. The plaintiffs thereafter brought six different suits against Lyons and others, involving this same property, and in each of said suits the defendants were represented by defendant Wilhite. All of said suits were instituted, subsequent to the said foreclosure sale and prior to the present suit, and all of said suits resulted in judgments favorable to plaintiffs. The plaintiffs, however, did not secure possession of the property until 1936.

At the time of the said foreclosure sale the property was subject to certain state and county taxes for the years 1930 to 1933 and certain city taxes for 1931 to 1934. These taxes accrued while Lyons was in possession of the property, and they remained due and unpaid. On December 22, 1936, defendant Wilhite for $ 11.13 obtained from the city treasurer of Kansas City a city tax deed to Ruth M. Burton covering the property in question. The property conveyed was reasonably worth from $ 900 to $ 1,000. This deed recites that the real estate was sold on the 9th day of November, 1931, for city taxes due upon said property for the year 1931; that it was purchased by the 'Commissioner of Accounts of the County of Jackson, State of Missouri,' who had offered to pay the sum of $ 11.13, being the whole amount of taxes, penalty and costs then due and remaining unpaid against said property; and that thereafter, on November 19, 1936, and after the lapse of five years, the property being unredeemed, the Commissioner of Accounts had assigned a certificate of purchase to Ruth M. Burton. Defendant Wilhite paid the consideration for said tax deed and thereafter paid certain city taxes, and placed the said tax deed of record December 30, 1936. Thereafter, while still purporting to act for defendant Burton, he served notice upon the tenants to pay no further rents to plaintiffs. The present suit followed the service of said notice. After the institution of this suit defendant Wilhite paid certain state and county taxes on behalf of Ruth M. Burton. Other facts will appear in the opinion.

The court found that plaintiff Robinson was the owner of the real estate described; that the plaintiff corporation was the holder of a lien against the same; that the purchase of the property by defendant Wilhite on behalf of defendant Burton for $ 11.13 was not in good faith, but was a fraud upon the plaintiffs; that the deed constituted a cloud upon the title and the interest of plaintiffs; that defendant Wilhite had participated in all of the previous litigation; that the said taxes had accumulated while his former clients owned and used the property; that he had full knowledge of the rights and equities of plaintiffs; and that, in furtherance of said tax deed, the said Wilhite, as agent of defendant Burton, had interfered with the use, ownership, possession and control of plaintiff's property. The court declared the tax deed to be void and set the same aside, but gave defendant Burton a lien for $ 125.71, covering taxes, interest, and costs advanced and paid by defendant Wilhite in her behalf, including $ 71.80 paid after the institution of the suit.

Appellant has made twenty-six assignments of error. Many of the assignments are so general that they present nothing for review and certain others will be considered as abandoned, since they are not referred to under points and authorities or in argument. In support of the assignments of error appellant refers us to one decision of this court, and to certain sections of the city charter of Kansas City, and certain statutes. These will be considered in the course of the opinion.

The petition, and demurrer thereto, are not referred to under 'assignments of error,' but under 'points relied on' appellant contends that the demurrer to the petition should have been sustained because the 'petition states no cause of action against appellant, Ruth M. Burton, as the property in question belonged to the City of Kansas City at the time of the sale and the City of Kansas City was not a party defendant to the action. Section 1009 City Charter of Kansas City, Section 6215, R.S. 1929, Mo.St.Ann. § 6215, p. 5332.' The record proper does not show the filing of a demurrer, but in the abstract under bill of exceptions, a demurrer is set out and the filing and overruling thereof is shown. The demurrer, however, does not mention any defect of parties defendant. The demurrer complains of a 'misjoinder of party plaintiffs,' and of other matters. No reason is assigned by appellant why the city should be joined. Only appellant is asserting any rights under the tax sale. No deed was made to Kansas City. The only deed in evidence is the tax deed executed by the city treasurer to appellant. The certificate of purchase, referred to, as issued to Kansas City and assigned to appellant, did not operate on the title. Kohle v. Hobson, 215 Mo. 213, 215, 114 S.W. 952. The assignment is overruled.

Appellant under 'points relied on,' says: 'Respondents' petition is not sufficient to sustain a cause of action. Section 6230, R.S. 1929, Mo.St.Ann. § 6230, p. 5341; Section 1020 City Charter of Kansas City.' The matter is not discussed, but said section 6230 is referred to in the demurrer to the petition. Section 1020 of the ordinances of Kansas City 1928 (offered in evidence) and the statute referred to provide that in case of suit calling in question the title or right of a grantee in a tax deed, executed substantially as provided by law, the person claiming adversely shall be required to prove, in order to defeat the tax deed, 'either that the taxes, interest and costs were paid before the sale; that the real property therein described was not subject to taxation for the year or years stated in the deed; that the real property therein described had been redeemed from the sale at the date of the deed, or the tender of the redemption money had been made to the city treasurer before the executing and delivery of the deed,' and that such redemption was had or attempted to be made for the use and benefit of the person having the right to redemption under the law. Said sections do not apply to defeat the statement of a cause of action in this case where the assault is upon the tax deed itself as being fraudulent and void. The respondents do not purport to state a cause of action under said sections, but seek relief in equity against alleged frauds of appellant and others. Respondents rely on Mangold v. Bacon, 237 Mo. 496, 518-524, 141 S.W. 650, and Wertheimer Shoe Co. v. Wyble, 261 Mo. 675, 690, 170 S.W. 1128 and insist that the record in this case shows that the property was sold for a shockingly and grossly inadequate consideration and that the record shows fraud, accident, surprise, hardship and unfairness, and that defendants had full notice of plaintiffs' equities. Black v. Banks, 327 Mo. 341, 37 S.W.2d 594, 598. In any case, both the petition of respondents and the answer of appellant state a cause of action under section 1520, R.S. 1929, Mo.St.Ann. § 1520, p. 1682; Voights v. Hart, 285 Mo. 102, 118, 226 S.W. 248. The assignment is overruled.

Appellant contends that the court erred in refusing to require plaintiffs to deposit in advance with the clerk of the circuit court an amount sufficient to pay appellant for all taxes paid plus interest and penalties. This matter was not properly presented to the trial court. There is no record showing that the court refused to require a deposit. After the decree was entered the record shows that the circuit clerk was authorized to receive the sum of $ 125.71 as fixed by the court 'as a special deposit' to be paid to appellant. Whether or not any part of this sum had previously been deposited does not affirmatively appear.

The respondents in their petition alleged that they had offered to redeem, reimburse and pay all sums dispersed by or for and on behalf of defendants in the payment of taxes, interest and penalties, and renewed the offer in the petition. Appellants only mention of the failure, if any, to actually make the deposit was by an assignment to that effect in the demurrer to the petition. A failure to make the deposit, if any, did not make the petition demurrable or prevent the statement of...