Sanford v. Herron
| Decision Date | 26 March 1901 |
| Citation | 61 S.W. 839,161 Mo. 176 |
| Parties | SANFORD v. HERRON et al.; UHRI et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jas. E. Withrow Judge.
Reversed.
John M Dickson for appellants.
(1) The judgment in favor of Rose against Curry et al., on December 13, 1883, was res adjudicata between the parties to that suit, and as between them finally determined the superiority of his title to that under which they claimed and Rose's right of possession. Estes v. Nell, 140 Mo. 650. (2) From the date of that judgment the possession by the tenants must be deemed to have been the actual possession of Rose. The judgment in ejectment operating directly upon the right of defendants possession, could not cease to be operative upon that possession so long as the judgment lived. Their possession was necessarily his possession, and they would be estopped to deny that from that moment they held under Rose. Snell v. Harrison, 131 Mo. 503. (3) The tenants in possession of the premises at the institution of Dr. Rose's ejectment were there at the date of the judgment, and remained there after that, and after the issuance of execution to the sheriff they did not appear at the trial and contest or dispute Rose's claim to possession, nor did they set up anybody's possession against Rose. Under such circumstances the judgment was equivalent to an actual ouster and yielding of possession to Rose. Moffatt v. Strong (N. Y.), 9 Bosw. 70. (4) Assuming that the ouster only began with the execution of the writ, and that adverse possession, if any, must date from the twenty-eighth of January, 1884, nevertheless, ten years did elapse from that date until the date of the institution of this suit. Calendar, Am. and Eng. Ency. of Law, vol. 29 title "Year." (5) The law as decided in this State is that where an execution is levied upon real estate while the lien of the judgment is in force, the deed under the sale on execution will relate back to the day of judgment, and the title which the defendant had at that time will pass. Bank v. Menard, 51 Mo. 48; Durrant v. Hulse, 67 Mo. 201; Slattery v. Jones, 96 Mo. 225.
E. P. Johnson for respondent.
(1) The trustee was not a necessary party to the tax proceeding, as the judgment against Charlotte Gebhart, the beneficiary in the deed of trust, barred his rights; and the sale under it vested the entire title to the property in Stephen Turner, the purchaser. Keating v. Craig, 73 Mo. 507, 509. (2) Neither Mike Geary, the trustee, nor Charlotte Gebhart, the beneficiary in the deed of trust, was a necessary party to said tax proceeding, and the sheriff's deed thereunder conveyed the legal title to the premises to Stephen Turner, leaving in the former only a right of redemption therein if they had not been made parties; and respondent was entitled to recover the possession of said premises. Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kriedler, 84 Mo. 472; Myers v. Bassett, 84 Mo. 479; Williams v. Hudson, 93 Mo. 524. (3) The suit resulting in the judgment in the case of Rose v. Curry et al., for possession of these premises, was begun June 13, 1883. Mary E. Tanner was owner of them at that time, and neither she nor any other owner of them at any time was a party defendant or privy to that suit. The judgment was res inter alios acta, and did not affect the rights of respondents. Adkinson v. Dixon, 98 Mo. 582; Henry v. Woods, 77 Mo. 277. (4) The judgment was in ejectment and was not res adjudicata of any question litigated in the proceedings. Ridgway v. Herbert, 150 Mo. 606; Swope v. Weller, 119 Mo. 556; Spencer v. O'Neill, 100 Mo. 49; Sutton v. Dameron, Id. 141; St. Louis v. Schulenberg & B. L. Co., 98 Mo. 613; Avery v. Fitzgerald, 94 Mo. 207; Ekey v. Inge, 87 Mo. 493; Prior v. Lambeth, 78 Mo. 538; Miller v. Dunn, 75 Mo. 260; Kimmel v. Benna, 70 Mo. 52; Slevin v. Brown, 32 Mo. 176. In St. Louis v. Schulenberg & B. L. Co. it was held that such a judgment is not admissible in evidence in a second such suit. (5) The great preponderance of authority is, that a judgment in ejectment does not break the continuity of an adverse possession until possession is taken under a writ of possession or obtained under it by attornment or consent of the tenant. Mabary v. Dollarhide, 98 Mo. 198; Jackson v. Haviland, 13 Johns. 229; Smith v. Trabue, 1 McLean 87; Kennedy v. Reynolds, 27 Ala. 364; Batterton v. Chiles, 51 Ky. (12 B. Monroe), 353; Carpenter v. Natoma Water & Mining Co., 63 Cal. 616; Bright v. Stevens, 1 Houst. 240; Smith v. Hornback, 4 Litt. 232; Hoskins v. Helm, Id. 309; Groft v. Weakland, 34 Pa. St. 308; Frederick v. Searle, 5 S. & R. 240. The only decision found in real conflict with the foregoing is Brolaskey v. McClain, 61 Pa. St. 146. The case of Gower v. Quinlan, 40 Mich. 572, which dealt with a decree that defendant execute a deed, held that it transferred the seizin the same as a deed would have done. The cases of Snell v. Harrison, 131 Mo. 495, and Estes v. Nell, 140 Mo. 639, were both partition proceedings, and the respective plaintiffs had previously recovered their interest in the respective premises by ejectment. It was held in the first of them, that partition proceedings were a practical mode of enforcing the judgment by the tenant in common, and they are for that reason not authorities on the question. A portion of the foregoing cases are cited to sec. 743, Sedgwick and Wait on Trial of Titles to Land. (6) If a judgment in ejectment breaks the continuity of an adverse possession, or, which is the same thing, suspends the running of the statute, it does so when it is rendered, and a failure to take possession under it can have no bearing on the subject, for if the continuity of an adverse possession is broken for a single day, it must begin to run anew and run for the full statutory period in order to be effective. Brolaskey v. McClain, 61 Pa. St. 166; Armstrong v. Morrill, 14 Wall. 141; Groft v. Weakland, 34 Pa. St. 308; Frederick v. Searle, 5 S. & R. 239; Olwine v. Holman, 23 Pa. St. 284; State v. Bishop, 22 Mo.App. 440.
An action in ejectment in statutory form was commenced January 26, 1894, for a parcel of ground on Moore street in block 211 of the city of St. Louis, twenty-five feet front or width, fifty feet in length or depth, being the south part of lot 4 in Moore's addition to said city, and alleged to be occupied by house number 12 on Moore street. Mrs. Emilie Uhri and Miss Ida Rose, the sole heirs at law of Dr. Edward Rose, are the defendants who assert title, and the other defendants are their tenants.
Plaintiff claims under a tax deed and mesne conveyances from the grantee therein.
The heirs of Dr. Rose claim under the foreclosure of a deed of trust given by John C. Blech, the common source of title, executed prior to the assessment and levy of the taxes for which the judgment for taxes was obtained.
Plaintiff's chain of title is as follows:
A sheriff's deed to Stephen Turner, dated and acknowledged May 11, 1882, under an execution issued on a judgment in favor of the State at the relation of Hudson, collector, v. John C. Blech, Charlotte Gebhart and Michael Geary, for taxes of 1879. From the files in said case, it appeared that summons was issued August 13, 1881, returnable to October term, 1881, of the circuit court of the city of St. Louis, and was personally served on John C. Blech, August 25, 1881, and a non est as to defendants Gebhart and Geary.
There was an allegation in the petition that Blech had conveyed the property to Michael Geary, as trustee, to secure a debt to Charlotte Gebhart, which deed of trust was recorded in book 340, p. 316, of the recorder's office.
On October 13, 1881, an order of publication was made on the non est return, for the reason, that the ordinary process of law could not be served on said Gebhart and Geary. The order recited the pendency of the suit for taxes of 1879 to the amount of $ 22.10 upon the following real estate, to-wit, "A lot of ground on Moore street in the city of St. Louis, in city block 211, twenty-five feet in front, or width, and fifty feet in length, being the south part of lot number 4 in Moore's addition to said city." The order was returned February term, 1882. The order was published four times in the Post-Dispatch newspaper; the first insertion was December 5, 1881, the second December 12, the third December 19, and the fourth December 26, 1881. Judgment was taken by default March 22, 1882. Execution issued April 8, 1882. Sale was advertised May 10, 1882, and was sold on that day to Stephen Turner for $ 305, which after satisfying the judgment and costs, left a surplus of $ 225.62.
These records were offered by defendant to show that "Mike Geary" and Dr. Rose were not parties to the suit.
Plaintiff next offered a warranty deed from Stephen Turner and wife to Mary E. Tanner, dated May 18, 1882. On May 19, Mary E. Tanner by deed of trust conveyed this lot to M. P. Jones, trustee for W. M. Dickey, to secure note for $ 1,500. This deed of trust was afterwards foreclosed on five days' public notice, and the lot conveyed to J. V. Hilton, October 25, 1883.
By quitclaim, Hilton conveyed to John Oliver, December 13, 1883; filed for record December 17, 1884. John Oliver conveyed to plaintiff Sanford, August 20, 1890, deed recorded August 26, 1895.
Greffet, a real estate agent, testified he got the surplus of the tax-sale, and gave it to Blech. He fixed the rental at $ 22 to $ 25 a month, if kept in good condition, but the house was thirty-five years old and tenanted by negroes.
On the part of defendant the evidence was, first, proof that Mrs Uhri and Miss Ida Rose were the sole heirs at law of Dr. Edward Rose, who died February 12, 1887; that Dr....
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