Strohm v. Boden

Decision Date11 July 1949
Docket NumberNo. 41068.,41068.
PartiesJAMES T. STROHM, Respondent, v. GEORGE BODEN, FREDERICK G. BODEN, JOHN T. WIRT and VELTA M. WIRT, Appellants.
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court; Hon. Emory H. Wright, Judge.

REVERSED AND REMANDED (with directions).

Cortner & Beals and Dwight Beals for appellants.

(1) After plaintiff's motion to set aside the judgment was overruled the court had no jurisdiction to set aside the judgment and the former judgment stands in full force and effect and the latter judgment is uull and void. Secs. 113, 114, 115, 119, 140, Civil Code; Supreme Court Rule 3.23; Federal Rules 52 (b), 59 (a); Brooks Bros. v. Brooks Clothing of California, Limited, 5 F.R.D. 14; Matyos v. Feddish, 4 F.R.D. 385; Keller v. Summers, 171 S.W. 336; Spindle v. Hyde, 152 S.W. 19. (2) Plaintiff's action is based upon alleged fraud. If fraud was committed it was committed on December 15, 1937, the date of the tax sale on and against his grantors. Plaintiff's grantor did only grant, bargain, sell, convey, confirm said property unto plaintiff, and did not grant, bargain, sell, convey, confirm any claim of fraud unto plaintiff. If any claim of fraud was assigned to plaintiff, plaintiff cannot maintain any action thereon because under the law an action in fraud cannot be assigned, as a right to appeal to the conscience of a court of equity cannot be bought or sold. DeTienne v. Peters, 188 S.W. (2d) 954; Ryan v. Miller, 139 S.W. 128. (3) The defendants Wirts were bona fide purchasers for value under a contract for warranty deed from defendant Frederick Boden without any notice of plaintiff's claim, free from any fraud; therefore cancellation of deed cannot be had to extinguish Wirts's contract for deed. 12 C.J.S., p. 1020; Morris v. Hanssen, 78 S.W. (2d) 87; Smith v. Holdaway Cons. Co., 129 S.W. 894. (4) Plaintiff had no right, title or interest in the property at the time of the sale. He was not hurt by the sale. He is charged with notice of the tax sale when he took title to the property and all he received by the deed was right to redeem and possession. He gave no consideration for the deed and received several hundred dollars more income from the property than he expended on the property. He was not injured by the sale. Therefore, he has no right to appeal to the conscience of a court of equity for relief. Hobson v. Elmer, 163 S.W. (2d) 1020; DeTienne v. Peters, supra. (5) Plaintiff did not redeem during redemption time but knowing of his rights waited eight and one half years after the tax sale to make any claim. He paid no taxes during that time. He stood by and let others pay taxes and make a large number of improvements of great value to the property until it was enhanced in value many times before he took action to the detriment and disadvantage of defendants and thereby slept on his rights and is now barred by laches. Paxton v. Fix, 190 S.W. 328; B.F. Goodrich Rubber Co. v. Bennett, 281 S.W. 75; Ruckels v. Pryor, 174 S.W. (2d) 185. (6) There was a deed of trust on this property to secure a note for $1,500. If the property had sold for more than the taxes, interest, penalty and costs, the surplus in equity belonged to the mortgagee. Plaintiff would not have received anything from the surplus until the surplus amounted to $1,500.00, plus interest, or a sale for more than $1,528.70. A sale of this property for $1,528.70 would not be a grossly inadequate and unconscionable inequity as to plaintiff. Willis Lucas Lumber Co. v. Neal, 4 S.W. (2d) 1098; Abbe v. Justice, 60 Mo. App. 300; Anderson v. Taylor, 227 S.W. 84; Moore v. Brigham, 198 S.W. (2d) 857; McDuffee v. Collins, 23 So. 45; Worcester v. City of Boston, 60 N.E. 410; DeTienne v. Peters, supra; Jones v. Shepard, 122 S.W. 764. (7) Plaintiff did not act with clean hands, nor did he do equity. His acts were unconscionable and beyond the pale of reason and a fraud upon his mortgagee and if allowed to prevail in this action will benefit by his unrequitable acts and secure unconscionable rights and profits. Walsh v. Walsh, 226 S.W. 236; Leeper v. Kruth, 163 S.W. (2d) 1031; Moore v. Carter, 201 S.W. (2d) 923; Sec. 1017, R.S. 1939. (8) Defendant Frederick Boden had equitable title and was entitled to collect the benefits from the property. State ex rel. v. Bauman, 153 S.W. (2d) 31. (9) There is no evidence to maintain a judgment against George Boden. (10) If this court sustains the trial court, the judgment is wrong in its allowance and charges for and against the Bodens and wrong in its allowances to the Wirts. Robinson v. Alabama & G. Mfg. Co., 89 Fed. 218; Groff v. Longsdon, 239 S.W. 1087; Kisling v. Yoder, 236 S.W. 860; Krahenbuhl v. Clay, 139 S.W. (2d) 970; McAboy v. Packer, 187 S.W. (2d) 207; Rains v. Moulder, 90 S.W. (2d) 81.

C.O. French for respondent.

(1) The trial court was not without jurisdiction to set aside its judgment entered February 6, 1948, in favor of appellants, and enter a judgment on April 13, 1948, in favor of the respondent. Civil Code, Secs. 114(c), 115, 119; Supreme Court Rule 3.25. (2) The respondent, plaintiff below, had the legal right to institute and maintain this suit by virtue of the general warranty deed whereby the property in question was conveyed to him. DeTienne v. Peters, 188 S.W. (2d) 954; Wetmore v. Berger, 188 S.W. (2d) 949; State ex rel. Bank v. Globe Indemnity Co., 332 Mo. 1089, 6 S.W. (2d) 133. (3) Respondent was not barred by laches from instituting and maintaining this suit. Voights v. Hart, 226 S.W. 248; Bussen Realty Co. v. Benson, 159 S.W. (2d) 813. (4) The price at which the property was sold at the tax sale was so grossly inadequate and unconscionable as to constitute a fraud in law. J.C. Nichols Co. v. Roorbach, 162 S.W. (2d) 274. Queen City Investment Co. v. Kreider, 31 S.W. (2d) 1002; Johnson v. McAboy, 169 S.W. (2d) 932; Bussen Realty Co. v. Benson, 159 S.W. (2d) 813; Moore v. Brigman, 198 S.W. (2d) 857; Daniel v. Mollett, (Mo. Sup.) 188 S.W. (2d) 54; Mahurin v. Tucker, (Mo. Sup.) 161 S.W. (2d) 423; Swain v. Boeving, (Mo. Sup.) 175 S.W. (2d) 591. (5) The certificate of purchase at a tax sale does not of itself pass title to the land, but title remains in the owner during the period of redemption. City of St. Louis v. Koch, 156 S.W. (2d) 1; State ex rel. Baumann v. Marburger, 182 S.W. (2d) 163. (6) Where tax sale was invalid, purchaser at tax sale could not recover for improvements made by purchaser after notice of claim of real owner. Delta Realty Co. v. Hunter, 152 S.W. (2d) 45; Sutton v. Anderson, 31 S.W. (2d) 1026; Mawson v. Vess Beverage Co., 173 S.W. (2d) 606; Brandon v. Stone, 162 S.W. (2d) 83; Lee v. Bowman, 55 Mo. 40; Sec. 3427, R.S. 1939. (7) Appellants Boden were not entitled to interest on the amounts paid by them on account of taxes on the premises. Said payments were made out of money which belonged to the respondent. (8) The lien of the state, county, municipality, or other governmental agency, for general taxes legally levied on property situated therein, is prior to any and all conventional liens on such property. (9) Under the evidence and the applicable law the appellants Wirt have no right, title or interest in the property in question. They had no right to reimbursements for alleged improvements. McAboy v. Packer, 187 S.W. (2d) 207; Sutton v. Anderson, 31 S.W. (2d) 1026; Brandon v. Stone, 162 S.W. (2d) 83.

BOHLING, C.

James T. Strohm instituted this suit in equity June 20, 1946, against George Boden, Frederick G. Boden, John T. Wirt and Velta M. Wirt to cancel a certain tax deed on the ground the consideration was grossly inadequate, for an accounting, an adjustment of equities and a money judgment in accord therewith, to quiet title, and for possession. Defendants appeal from the decree for plaintiff. Defendants' principal contentions are that plaintiff is not entitled to recover because he was not injured by the fraud, that the rights of bona fide purchasers have intervened, and that plaintiff is not entitled to the relief sought in a court of equity.

William L. and Maye B. Perkins, husband and wife, acquired the record title to the lot (known as 3724 Olive street, Kansas City, Missouri), October 5, 1933, subject to a first deed of trust securing $1,500 and a second deed of trust securing $250.

On December 15, 1937, Kansas City sold the lot for delinquent city general taxes and a special assessment tax for 1937. The bid was $28.70, at 12% interest annually, being the amount of the taxes, penalties and costs. The only question concerning this sale is the adequacy of the bid. Notation of the tax sale was made in the proper tax book opposite the listing of said lot, as required by ordinance: "Sold to W. Hickman, $28.70 at 12 per cent, December 15, 1937." A certificate of purchase was issued on January 31, 1938, to W. Hickman, the successful bidder, and in due course was assigned on January 17, 1943, to Frederick G. Boden.

On March 4, 1938, Mr. and Mrs. Perkins conveyed this lot by warranty deed (recorded March 16, 1938) to James T. Strohm, plaintiff, "subject to a deed of trust of record securing a note for $1,500." Strohm paid the grantors nothing therefor. At the time he was engaged to the daughter of the said grantors, although they never married and later he married someone else.

Plaintiff took immediate possession and collected approximately $650 in rents. He paid out approximately $210 for improvements and maintenance. He testified he paid a Mr. Bales the $250 second deed of trust, which has not been released of record. Bales stated plaintiff paid the balance then due, one hundred and some dollars. Plaintiff claimed he paid between $150 and $200 on the $1,500 debt, paying $15 at a time out of the rent between August, 1938, and August, 1939, to Mrs. James B. Crosby. Administration proceedings on the estate of Mrs. Crosby, deceased, established that s...

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12 cases
  • Strohm v. Boden
    • United States
    • Missouri Supreme Court
    • July 11, 1949
  • Union Elec. Co. v. Morris
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  • Leone v. Bear
    • United States
    • Missouri Supreme Court
    • September 10, 1951
    ... ... 953[9-11], embracing a charge of fraud based on a sale at a price so grossly inadequate as to shock the conscience of a court of equity. See Strohm v. Boden, 359 Mo. 573, 222 S.W.2d 772, 776 ...         So far as material here our statutes provide that lands foreclosed under deeds of ... ...
  • Union Electric Co. v. Morris
    • United States
    • Missouri Supreme Court
    • July 11, 1949
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