Stuart v. Ramsey
| Decision Date | 22 May 1906 |
| Parties | STUART, Appellant, v. RAMSEY et al |
| Court | Missouri Supreme Court |
Appeal from Crawford Circuit Court. -- Hon. L. B. Woodside, Judge.
Reversed and remanded (with directions).
John B Denvir, Jr., for appellant.
(1) The collector had notice that Stuart was the owner of the land in question when the tax suit was instituted, hence the tax suit should have been brought against Stewart. St. Joseph v Baker, 86 Mo.App. 316. (2) The purchaser at the tax sale had notice that Stuart was the owner of the land, hence he was not an innocent purchaser. Watt v. Donnell, 80 Mo. 195. (3) The sheriff's deed passed only the title of the American Real Estate & Investment Company, if it passed any title, and did not affect the title of Stuart, the owner of the land, who was not a party to the tax suit. Powell v. Greenstreet, 95 Mo. 15; Bartlett v. Kander, 97 Mo. 356; Jaicks v. Sullivan, 128 Mo. 187. (4) To sustain the judgment of the lower court in this case would be to deprive Stuart of his property without due process of law in violation of the fundamental law of the land. Watt v Donnell, 80 Mo. 195.
Frank H. Farris and A. H. Harrison for respondents.
(1) All actions to enforce collection of back taxes 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; and the person who appears, by the record of deeds, to be the owner of the land, is the proper party to make defendant. Payne v. Lott, 90 Mo. 676; Allen v. Ray, 96 Mo. 542; Crane v. Dameron, 98 Mo. 567; Simonson v. Dolan, 114 Mo. 176; Hilton v. Smith, 134 Mo. 512; Railroad v. View, 156 Mo. 608; Lucas v. Land & Cattle Co., 186 Mo. 456; R. S. 1899, sec. 9303. (2) And this is the unmistakable rule except where the party suing has actual knowledge that the owner of the property is some other person than as shown by the deed records. Vance v. Corrigan, 78 Mo. 94; Watt v. Donnell, 80 Mo. 195; Cowell v. Gray, 85 Mo. 169; St. Joseph v. Baker, 86 Mo.App. 310; Hilton v. Smith, 134 Mo. 508; Ozark Land & Lumber Co. v. Robertson, 89 Mo.App. 480. (3) Actual knowledge is that state of facts and circumstances proven in the case which are "so pregnant with inference, and provocative of inquiry" as to put a reasonably thinking man upon notice and investigation; and requires more than mere rumor or unofficial commucations in ordinary conversation. R. S. 1899, sec. 925; Vaughan v. Tracy, 22 Mo. 415; Vaughan v. Tracy, 25 Mo. 318; Maupin v. Emmons, 47 Mo. 304; Ins. Co. v. Smith, 117 Mo. 292; Hickman v. Green, 123 Mo. 165; Morrison v. Juden, 145 Mo. 297. (4) "Actual notice" is an issue of fact, and the finding of a court of equity upon an issue of fact should not be disturbed by an appellate court where there is any tangible and reliable testimony to support the finding. Dunivan v. Dunivan, 157 Mo. 157; Chance v. Jennings, 159 Mo. 560.
This is an action brought by T. G. Stuart, a resident and citizen of the State of Kentucky, under section 650, Revised Statutes 1899, to ascertain and determine his title and interest and the interest and title of the defendants in certain real estate lying in the county of Crawford in the State of Missouri, to-wit: the northwest quarter and the northwest quarter of the northeast quarter of section twenty-seven, and the south half of the southwest quarter, and the southwest quarter of the southeast quarter of section twenty-two, all being in township thirty-seven, north, of range four west, and containing in all three hundred and twenty acres.
The suit was returnable to the March term, 1902, of the circuit court of Crawford county. Plaintiff alleged that he was the owner in fee simple, and claimed title to the said lands; that he was informed, and believed, that the defendants made some claim of title, estate or interest in and to said premises adverse to the title and interest of the plaintiff. It was also alleged that the defendant had cut and removed from the premises a large amount of timber, which was standing and growing thereon, of the value of two hundred dollars. The defendants at the August term, 1902, filed a joint answer to the petition, wherein they denied plaintiff's ownership of the said lands and averred that they, the defendants, were the owners in fee thereof, and under their title were in the absolute and exclusive possession of the said premises, and prayed for judgment decreeing the title to said lands to be in the defendants. On a motion of the defendants the court struck out that portion of the plaintiff's petition which sought to recover for the timber alleged to have been cut by the defendants. At the said August term, 1902, the cause was heard and a judgment and decree rendered in favor of the defendants, H. M. Ramsey and William E. Evans, and that all the right, title and interest of the plaintiff be vested absolutely in the said defendants. In due time the plaintiff filed his motions for new trial and in arrest of judgment, and the same were heard and overruled by the court and exceptions saved by the plaintiff, and thereupon an appeal was granted to this court.
On the trial it was stipulated in open court that on February 29, 1891, Richard Newberry was the owner of the land in question, and that he conveyed it by proper deed of conveyance to the American Real Estate & Investment Company, a corporation, which deed was duly recorded in the recorder's office of Crawford county, Missouri. The plaintiff then read in evidence a warranty deed dated January 23, 1897, and filed for record March 3, 1902, and recorded in deed record book number 49, page 377, from "The American Real Estate & Investment Company" to James Halley, of Stoner, in the State of Kentucky. Plaintiff then offered in evidence a general warranty deed, of date August 20, 1900, and filed for record March 3, 1902, and duly recorded, from James Halley, a single man, to T. G. Stuart, of the city of Clark in the State of Kentucky. This was the plaintiff's case in chief.
Thereupon the defendants offered in evidence the original petition and taxbill marked "Exhibit A," filed January 12, 1901, in the suit in which J. F. Hethcock as collector was plaintiff and the "American Real Estate & Investment Company," defendant, for delinquent taxes on the lands in suit for the years 1897, 1898 and 1899. The action was brought to the circuit court of Crawford county, at the February term, 1901, the aggregate of the taxes sued for the said years being $ 22.59. The petition was in the ordinary form of such actions. The certified taxbill filed with the petition shows the land was assessed to "The American Real Estate & Investment Company." To the introduction of the rolls in the said cause, the plaintiff objected on the ground that the suit appeared to be against the "American Real Estate & Investment Company," and the service was had upon a man who is recited in the return of the sheriff, as president of the corporation, who in truth and in fact was not the president of the corporation, and for another reason that the writ was issued on the 12th of January, 1901, and required the said defendant to appear at the February term, 1901, of the said court, and purports to have been served on the 21st of January, 1901, which objections were by the court overruled and exceptions saved. The return of the sheriff is in these words:
Defendants then introduced in evidence the judgment rendered at the February term, 1901, on the 16th day of May, 1901, upon the said tax petition, to which plaintiff objected, because the service was not sufficient for final judgment at that term. Said judgment was for $ 30.43 and for costs, and the collector's commission and attorney's fees, all of which were adjudged a special lien against the lands in suit, and special execution awarded. The defendants also offered in evidence the special execution in due form on said judgment and the return of the sheriff thereon, which was not signed by the sheriff. The return of the sheriff showed the lands in question were sold to H. M. Ramsey for $ 45. Upon the application of the defendants the court permitted the sheriff to amend his return by signing his name to the return on the execution, to which the plaintiff then and there objected and excepted. Defendants also offered in evidence the notice of the sale of the land in suit and also the notice of the levy and the sheriff's report of sale. Defendants then offered in evidence the sheriff's deed by W. R. Taff, sheriff of Crawford county, for the said lands to H. M. Ramsey and William E. Evans, acknowledged before William E. Evans, clerk of the said court, and duly recorded August 31, 1901. The defendants then rested.
Thereupon the plaintiff in rebuttal called J. D. McCormick, who was sworn, and testified that he had lived at Cuba, Missouri, for six years; that he had known plaintiff for about two and a half years, but had corresponded with him previous to meeting him personally; that he knew H. M. Ramsey and W. E. Evans that he did not learn of the sale of the lands in suit until January or February, 1902, he first learned of it from Mr. Ramsey, who told him of it in the bank of Cuba. He testified that the plaintiff wrote to him some eight or ten months prior to the sale of this land, for a statement of its taxes, and the witness wrote to Mr....
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