Rothenberger v. Garrett

• Decision Date: 14 December 1909
• Parties: ROTHENBERGER et al. v. GARRETT et al.
• Court: Missouri Supreme Court

123 S.W. 574

ROTHENBERGER et al. v. GARRETT et al.

Supreme Court of Missouri, Division No. 2.

December 14, 1909.

1. TAXATION (§ 641) — COLLECTION AND ENFORCEMENT — PARTIES.

Under Rev. St. 1899, § 9303 (Ann. St. 1906, p. 4274), providing that all actions for back taxes shall be prosecuted against the owner of the property, the owner is a necessary party to a suit to enforce the lien of the state.

2. TAXATION (§ 641) — COLLECTION AND ENFORCEMENT — PARTIES.

Under Rev. St. 1899, § 9303 (Ann. St. 1906, p. 4274), providing that all actions for back taxes shall be prosecuted against the owner of the property, it is sufficient for the collector to bring the suit against the apparent or record owner of the land.

3. TAXATION (§ 730) — COLLECTION AND ENFORCEMENT — SALES.

A purchaser at a tax sale under a judgment for taxes under the act of 1877 (Acts 1877, p. 384) acquires a good title as against the holder of an unrecorded deed from the apparent owner, unless it appears that when the collector sued to enforce the lien for taxes, or that at the time of purchasing, the purchaser knows or has notice that the title has been transferred from such apparent record owner to one not a party to the tax proceedings.

4. TAXATION (§ 641) — COLLECTION AND ENFORCEMENT — PARTIES — SALE — VALIDITY.

Under Rev. St. 1899, § 9303 (Ann. St. 1906, p. 4274), providing that actions to collect back taxes shall be prosecuted against the owner of the property, where the trustee of property shown by the record to hold the legal title was dead, and his heirs were not made parties to the tax suit, the proceeding was void as to such trustee and his heirs.

5. TRUSTS (§ 160) — WANT OF TRUSTEE.

A court of equity will never permit a trust to fail for want of a trustee.

6. TRUSTS (§ 169) — TRUSTEES — APPOINTMENT — COLLATERAL ATTACK.

Where the court had power to appoint a new trustee under a will, such appointment was not open to attack in a proceeding to test the validity of a tax sale of the trust property.

7. TAXATION (§ 642) — COLLECTION AND ENFORCEMENT — NOTICE OF PROCEEDING — SUFFICIENCY.

A notice of a tax proceeding by order of publication describing one as "Julius Pfeifer" was not notice to "Julia Schulz," and a notice to "Mathilde Pfeifer" was not notice to "Mathilde Rothenberger."

8. TAXATION (§ 641) — ENFORCEMENT AGAINST LAND — PARTIES.

A tax proceeding did not divest the title of devisees under a will whose property was held in trust, where the trustee only was named, and there was nothing to indicate that the proceeding was intended to bind the interests of the beneficiaries.

9. APPEAL AND ERROR (§ 1071) — HARMLESS ERROR — ERRONEOUS DECLARATIONS OF LAW.

Erroneous declarations of law by the court in a trial without a jury are not ground for reversal.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Mathilde Rothenberger and others against Eliza Garrett and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

M. Hilton, and E. P. Johnson, for appellants. A. H. Engel and Bishop & Cobbs, for respondents.

GANTT, P. J.

This is and was a suit commenced in the circuit court of the city of St. Louis to quiet the title to a certain lot in the city of St. Louis, in city block No. 55, and having a front of 19 feet on the west line of Second street and a depth of 100 feet and specifically described by metes and bounds. The common source of title of all the parties is Edward Pfeiffer, whose will was probated March 2, 1868. The portion of said will material to a proper determination of this suit is in these words: "All of my real estate, consisting of a house and lot in the city of St. Louis and of the undivided half of a farm in Jefferson county, both hereinafter more particularly described (to-wit as in the petition) I give and bequeath unto my friend L. D. Carroll of the City, to have and hold to himself, his heirs and assigns forever, in trust for the following purposes; during all the time that my beloved wife, Mathilde, shall remain unmarried and my widow, she shall have the sole use and benefit thereof and said trustee is to hold said property for the purpose to let her enjoy and use the income thereof and if she then should die my widow, she may dispose of the same by will, or in default thereof, it shall go to her heirs; but in case my said wife Mathilde should not continue to be my widow, then and in that case, the said trustee shall hold said real estate from the moment of the second marriage of my said wife Mathilde, in trust for her, my daughter, Julia, and my son, Gustav; and said equal third interest of my wife shall be held by her said trustee, free from the interference, control or interest of any husband she may have." The evidence further discloses that on July 15, 1868, the widow, Mathilde, married John Huser. He died, and she married Frank Rothenberger on September 4, 1874. On January 9, 1901, Gustav Pfeiffer and his sister Julia Schulz gave to their mother a deed to all their interest in said lot. Thereafter, on January 14, 1901, Mathilde Rothenberger conveyed an undivided half interest in said lot to Milton C. Brown, and on April 8th Brown conveyed said half interest to William J. Brasfield, and on January 14, 1903, Brasfield deeded said one-half interest to Henry Kaiser, one of the plaintiffs. In April, 1870, L. D. Carroll, the trustee named in the will, died, and his estate was fully administered and finally settled in the probate court of the city of St. Louis. At the April term, 1894, of the circuit court of St. Louis, Mrs. Mathilde Rothenberger, Gustav Pfeiffer, her son, and Julia Schulz, her daughter, being the sole owners of the beneficial interest in said lot, filed their petition, duly verified, for the appointment of a trustee to succeed to and execute the trusts in said will in the place of L. D. Carroll, deceased, and the said court appointed Frederick Gottschalk, trustee, to execute the trusts in said will. In their petition in this case, which was originally filed May 16, 1903, it was alleged that Eliza Garrett and Manetho Hilton claimed to own some right, title, interest, or estate in said lot, but, in fact, they had no title thereto. Afterwards, on 25th of February, 1905, plaintiffs filed an amended petition, in which they made Frances Hughes a party defendant, and alleged that since the filing of the original petition there had been placed on record a deed purporting to have been executed by defendant Eliza Garrett to said Frances Hughes to all of said lot, but that said deed in fact transferred no interest therein and only clouds the title of plaintiffs to said property; that said defendants Garrett, Hilton, and Hughes or some of them were collecting the rents of said lot and appropriating them to their use; that said Manetho Hilton is the real party who claims said property and defendants Garrett and Hughes are merely his representatives; that these parties claim some interest in said lot by virtue of or through a certain deed executed by one John H. Pohlmann as sheriff of St. Louis to one Rachel Y. Jacobs, dated December 11, 1900, and recorded in book 1574, at page 505, of the records of deeds in recorder's office of the city of St. Louis; that said deed is void and of no effect, and the claims made by defendants thereunder are without right and a cloud upon plaintiffs' title. A number of other defendants were made parties for the reason various mortgages and deeds of trust had been made to them, which plaintiffs alleged were satisfied in fact, but not of record. Order of publication was made notifying nonresident defendants and unknown defendants upon proper allegations in the petition which was verified. Defendant Hilton answered, and disclaimed all interest, so likewise did defendant Garrett. On December 6, 1905, defendant Frances Hughes entered her appearance, and filed an amended answer to the amended petition. After making specific denials of the most of the allegations of the amended petition, she avers that she claims an interest in said lot by virtue of the deed executed by Pohlmann as sheriff on December 11, 1900, to Rachel Y. Jacobs, and alleges that it is valid and conveyed the title to said Jacobs, and said title by mesne conveyances from said Jacobs has become vested in her the said Hughes for valuable consideration. She alleges she is the equitable and legal owner of said lot, and prays the court to so decree her to be. Plaintiffs filed a reply, denying all the new matter alleged in the several answers.

1. As both parties claim title through Edward Pfeiffer and the plaintiffs deduce their title through the last will and testament of Edward Pfeiffer and his devisees, the controlling question in the case is as to the validity of the tax deed made by the sheriff to Rachel Y. Jacobs, and the judgment upon which that deed is based. By section 9303, Rev. St. 1899 (Ann. St. 1906, p. 4274), it is provided that: "All actions for back taxes, commenced under the provisions of that chapter shall be prosecuted in the name of the state of Missouri at the relation and to the use of the collector and against the owner of the property." It has been ruled that, while these tax judgments are against the property and are not personal, still the tax is assessed against the owner, if...