Stafford v. Fizer

• Decision Date: 30 April 1884
• Citation: 82 Mo. 393
• Parties: STAFFORD et al. v. FIZER et al., Appellants.
• Court: Missouri Supreme Court

82 Mo. 393

STAFFORD et al.

v.FIZER et al., Appellants.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Saline Circuit Court.--HON. J. P. STROTHER, Judge.

AFFIRMED.

Smith & Krauthoff with Boyd & Sebree for appellants.

(1) The suit was prematurely brought. To have entitled plaintiff to recover, it was necessary for her to show that at the time of the commencement of the suit, defendants were in possession and that plaintiff had the right to the possession. R. S. 1879, § 2247. This was clearly negatived by the stipulation in the contract. In this state, plaintiff cannot recover in ejectment unless the “legal title was vested in him at the time of bringing the suit.” Norfleet v. Russell, 64 Mo. 176; Ford v. French, 72 Mo. 250; Dunlap v. Henry, 76 Mo. 106. Plaintiff can not recover where it appears he had “no cause of action at the time of the bringing his suit.” Norcune v. D'Oench, 17 Mo. 98; R. S. 1879, § 2247. (2) H. Clay Cockerill's title to the land in dispute cannot, in any way, be affected by the back tax suit, for the reason that neither the heirs nor legal representatives of Thomas N. Cockerill were parties to the same. They were necessary parties. Acts 1877, p. 386, § 6; Blackwell on Tax Titles (4 Ed.) §§ 420, 423; R. S. § 3465; State ex rel. Petts v. Staley, 76 Mo. 158; Seibert v. Allen, 61 Mo. 488; City of Kansas v. Railroad Co., 77 Mo. 180. In equity, all parties materially interested in the subject matter of the suit, ought to be made parties plaintiff or defendant. 1 Story's Eq. Pl., § 76; Williams v. Bankhead, 19 Wall. 563. And the rule is the same in legal actions. Bliss on Code Pl. §§ 77, 78. The legal representative of the estate of the deceased not having been made a party to the back tax proceeding, neither he nor the defendant, H. Clay Cockerill, is concluded by it. City of St. Louis v. Richerson, 76 Mo. 470; Cooley on Tax, pp. 265, 266, 572. In proceedings in rem publication or personal citation is essential to give jurisdiction. Waple's Res. Adjudicata, 125, §§ 87, 625; Corwin v. Merritt, 3 Barb. 341; Blackwell on Tax Titles, p. 237; Chase v. Hathaway, 14 Mass, 222; Eddy v. People, 15 Ill. 386; Henry v. Woods, 77 Mo. 277; Hale v. Finch, 104 U. S. 261. The legal representative of the estate of Thomas N. Cockerill not having been made a party to said back tax suit, a sale of the said land was as to him and the defendant, coram non judice. Rees v. City of Watertown, 19 Wall. 106; 1 Story Eq. Jurisprudence, § 60; Constitution of Mo., Art. 2, § 30.

Wm. D. Bush and Samuel Davis for respondents.

James A. Clark, a defendant in the execution, was in possession of the premises by his tenant, Fizer, at the date of the plaintiff's purchase, at the date of her deed, at the date of the institution of this suit, and at the trial, and the plaintiffs are entitled to that possession which the defendants in the execution had. See Matney v. Graham, 59 Mo. 190; Totten v. James, 55 Mo. 494; Boyd v. Jones, 49 Mo. 202; Peyton v. Rose, 41 Mo. 257; McDonald v. Snyder, 27 Mo. 405. The defendant in the execution, Clark, could not set up an outstanding title in Cockerill; neither could Fizer, his tenant, set up such title in this action. See Boyd v. Jones, 49 Mo. 205; Matney v. Graham, 59 Mo. 190; Laughlin v. Stone, 5 Mo. 43. The back taxes for which the judgment was rendered, under which plaintiff purchased, were a prior lien on the land, (R. S., § 6832,) in favor of the State, the suit was to enforce it against the owner (§ 6837) and the trustee and all the cestui que trusts named in the mortgage from Clark were made defendants, and if the defendant, Cockerill, had a claim upon the land, it was secondary to the State's lien, and only gave him a right to redeem, which he did not insist upon at the trial.

MARTIN, C.

This was an action in ejectment in the usual form, for eighty acres of land, and was commenced February 20th, 1880. James A. Clark was the common source of title. The plaintiff, Mary E. Stafford, claimed as purchaser at execution sale effected on the 30th of October, 1878. This sale was in pursuance of a judgment in a certain proceeding commenced on the 18th day of June, 1878, by the collector of Saline county, against James A. Clark, J. Y. Stearne, trustee, and Daniel White, guardian of W. E. White, the object of which was to enforce the lien of the State for taxes upon said land for the years 1868 to 1876, inclusive, amounting in the aggregate to $123.25, besides interest and costs.

The defendant, Fizer, had been in possession as tenant of Jas. A. Clark, but it is alleged in the answer that at the commencement of this suit he was tenant of H. Clay Cockerill. The defendants claim title by trustee's deed to H. Clay Cockerill, dated April, 1879, delivered in execution of the power of sale in a deed of trust made by said Jas. A. Clark in August, 1863, to J. Y. Stearne, as trustee, to secure certain notes therein described, one payable to Daniel B. White, guardian of William E. White, in the sum of $8,635; one payable to John Y. Stearne in the sum of $4,686.49, and a third payable “to the executors of the estate of Thomas N. Cockerill” in the sum of $1,300. This deed of trust conveyed a great amount of other real property, as well as much personalty. The trustee was vested with the power of sale upon default of payment of the debts secured. It appeared that Henry Clay Cockerill was executor of Thomas N. Cockerill. These facts were set up by the defendants in their answer by way of equitable defense, and they asked to be allowed to redeem the land by payment of the taxes for which it was sold. The case was tried by the court without a jury; and upon the evidence it found that Fizer was, at the time of the judicial sale, in possession of the premises as tenant of Jas. A. Clark; that the title acquired by Mrs. Stafford at said sale was superior to the title of defendant, Cockerill, acquired at a sale under the deed of trust, and that she was entitled to possession of the land sued for. The defendants have appealed.

The principal question for us to determine is, whether the deed of a purchaser at execution sale under a proceeding to enforce the State's lien for taxes, is good against the beneficiary of a deed of trust, antedating the origin of the tax lien, who has not been made a party to the proceedings to enforce it. The record shows that the trustee and another beneficiary in the deed of trust were made parties to the tax lien suit, but that the executor of Cockerill, who held the note for $1,300 was not included in the suit. The deed of trust was duly recorded, and no excuse for the omission is alleged in the petition or contained in the evidence. The learned counsel for the plaintiffs maintain that the complete title to the land passed to the purchaser by virtue of the execution sale, and that the omission of the beneficiary in question could not affect its validity. The precise question here presented has never been passed upon by this court. But the principles of law, as well as the decisions of this court governing the enforcement of liens on real estate, ought to furnish a sufficient guide for us in determining it. It will be observed that we are dealing with two liens, one created by law in favor of the State which necessarily takes precedence of other prior, as well as subsequent liens, on account of its peculiar character; R. S. 1879, §§ 6831, 6832; Blossom v. VanCourt, 34 Mo. 390; McLaren v. Shieble, 45 Mo. 130; Dunlap v. Gallatin Co., 15 Ill. 7; Almy v. Hunt, 48 Ill. 45; Binkert v. Wabash Co., 98 Ill. 205; the other in favor of creditors, created by the act of the debtor. These two liens have been foreclosed and the purchasers stand opposed to each other with deeds under the proceedings respectively employed for enforcing them. The lien of the State is the superior one, although subsequent in time, a superiority invariably accorded to it in absence of some legislative declaration to the contrary. Cadmus v. Jackson, 52 Penn. 295; Doane v. Chittenden, 25 Ga. 103; Hopper v. Malleson, 16 N. J. Eq. 382; Cooper v. Corbin, 105 Ill. 224. No system of jurisprudence would command respect which failed to maintain and enforce the benefits of this priority by all necessary and reasonable proceedings to that end. When real estate was encumbered with two mortgage liens, and the owner of the first undertook to enforce it by suit, he could proceed to judgment without making the owner of the second a party defendant. But, in doing so, he accepted the consequences of leaving him unaffected by the proceeding. The second mortgagee was not, perhaps, a necessary party to a decree of foreclosure. He was a proper party, and if he was omitted from the proceedings the decree could not operate as a divesture of his rights, 2 Jones on Mort., § 1394 (3rd Ed.); Valentine v. Havener, 20 Mo. 133; Goodman v. White, 26 Conn. 317. The second mortgagee holds a lien only on the equity of redemption, and a foreclosure of his lien gives to the purchaser under it, only the equity of redemption. As against a purchaser under proceedings foreclosing the prior mortgage, from which he has been omitted as a party, he possesses the right to redeem the land by payment of the debt for which it was foreclosed. In a proper proceeding to enforce this equity of redemption, he may acquire the absolute title. He could not successfully resist an action at law for the possession, because the title under the superior lien is the superior title at law. Valentine v. Havener, 20 Mo. 133. But since law and equity have been blended, he can resist and overcome this title by setting up his equitable defense in the right to redeem, and paying for decree of redemption. If the holders of the deed of trust, which in this case constitutes the second lien, had been made parties to the proceedings to enforce the tax lien the subsequent foreclosure of the deed of trust would fail to vest in the purchaser any right of redemption. He would be concluded by the...