Stubblefield v. Husband

• Citation: 106 S.W.2d 419,341 Mo. 38
• Parties: M. L. Stubblefield, Appellant, v. Edna Y. Husband
• Decision Date: 21 June 1937
• Court: United States State Supreme Court of Missouri

106 S.W.2d 419

341 Mo. 38

M. L. Stubblefield, Appellant, v. Edna Y. Husband

Supreme Court of Missouri

June 21, 1937

Rehearing Denied June 21, 1937.

Motion to Transfer to Court en Banc Denied June 21, 1937.

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge; Opinion filed at September Term, 1936, April 21, 1937 motion for rehearing filed; motion overruled June 21, 1937 motion to transfer to Court en Banc filed; motion overruled at May Term, 1937, June 21, 1937.

Affirmed.

S. P. Dalton and Bradley & Noble for appellant.

(1) Plaintiff was entitled to the relief sought in the original petition. Under the facts in the record, plaintiff would have been entitled to a decree quieting the title to the real estate as against all of the original defendants, and to have the conveyances by which Rolwing obtained title set aside, and title vested in plaintiff. The original trustee's deeds were obtained by fraud, accident or mistake, and the rights of no innocent parties had intervened. Delaney v. Light, 263 S.W. 819; Branner v. Klaber, 330 Mo. 306, 49 S.W.2d 179. (2) In view of the fact that the petition in this cause was filed January 11, 1932, to quiet and determine the title to the real estate in plaintiff, and in view of the fact that notice of lis pendens was duly and timely filed, defendant purchased with notice of plaintiff's claim and subject to the ultimate outcome of said suit. Sec. 3155, R. S. 1929; Turner v. Babb, 60 Mo. 347; Gordon v. Ritenour, 87 Mo. 59; Taff v. Tallman, 277 Mo. 162; Sugg v. Duncan, 238 Mo. 427, 142 S.W. 322. (3) Defendant purchaser at the tax sale took subject to plaintiff's claim of ownership, since plaintiff's suit to recover the property was instituted and notice of lis pendens filed prior to the time that judgment was rendered in the tax suits and plaintiff was not made a party thereto. Fleming v. Pemiscot Land Co., 211 S.W. 77; Hord v. Harlow, 143 Mo. 474; Sugg v. Duncan, 238 Mo. 425. (4) Where the real estate is of far greater value than the amount of the tax judgment, and where the property is susceptible of division, a sale of the property in solido without first offering the property for sale in parcels is an abuse of discretion and the sale is voidable and may be set aside by a direct proceeding in equity. Shelton v. Franklin, 224 Mo. 363, 123 S.W. 1090; State ex rel. v. Sanders, 326 Mo. 76, 30 S.W.2d 988; State ex rel. v. Yancy, 61 Mo. 399; Gordon v. O'Neil, 96 Mo. 356; Corrigan v. Schmidt, 126 Mo. 312; Yeaman v. Lepp, 167 Mo. 71; Mason v. Wilks, 288 S.W. 938; Black v. Banks, 327 Mo. 341, 37 S.W.2d 594; State ex rel. v. Elliott, 114 Mo.App. 562, 90 S.W. 122. (5) Plaintiff was not estopped to attack the regularity of the tax proceeding merely because Rolwing was named defendant in the Bill of Interpleader and claimed and was awarded the surplus from the tax sale: (a) Neither plaintiff, the Missouri State Life Insurance Company, nor the General American Life Insurance Company were parties to the tax proceeding. Pickel v. McCawley, 329 Mo. 166, 44 S.W.2d 861; Natl. Cypress Pole & Piling Co. v. Hemphill Lbr. Co., 325 Mo. 807, 31 S.W.2d 1064. (b) Plaintiff could not be estopped by any act of Rolwing, an adverse claimant, who had no legal right to the real estate as against plaintiff the true equitable owner. The release by Rolwing to plaintiff conceded plaintiff's claim. Plaintiff acquired no rights but Rolwing's claim was eliminated. Estoppel in pais operates only on existing rights. Rolwing had none. Donaldson v. Hibner, 55 Mo. 492. (c) The burden of proof was upon defendant to clearly establish every fact essential to the estoppel pleaded. Grafeman Dairy Co. v. Bank, 315 Mo. 849, 288 S.W. 368. (d) Plaintiff tendered the full amount of defendant's bid with interest and taxes paid. Sec. 9966, R. S. 1929. (e) Even if it be considered that plaintiff claims under Rolwing, the claim for the surplus was only an effort to recoup a part of the purchase price tendered to defendant in this proceeding which would otherwise have been taken by the districts which had no legal right to it. Holly v. Rolwing, 87 S.W.2d 651. (f) There is no estoppel where there is a retender of the surplus or purchase price to the purchaser. 21 C. J. 1212, sec. 215; Clelland v. Clelland, 291 Mo. 312, 235 S.W. 818. (g) Equitable estoppel arises for the protection of a party, who could not otherwise escape loss. Plaintiff's tender of purchase money avoids the estoppel. State ex rel. Moss v. Hamilton, 303 Mo. 302, 260 S.W. 466; Austin v. Loring, 63 Mo. 22. (6) The tax judgment was defective in that the amount of the tax against each parcel was not designated in the judgment. Sec. 9956, R. S. 1929; Jones v. Driskill, 94 Mo. 190; Walker v. Mills, 210 Mo. 691. (7) The legality of the proceedings for the enforcement of the lien for State and county taxes was not questioned in the interpleader proceeding which was tried upon an agreed statement of facts signed by the parties thereto. Holly v. Rolwing, 76 S.W.2d 1076; Holly v. Rolwing, 87 S.W.2d 651. (8) The court did not err in setting aside the order abating the cause. (a) The court may set aside its own orders at any time during the term and the record will then stand as though the order had never been made. Boegemann v. Gracey, 315 Mo. 437, 285 S.W. 994; Martin v. Cotton Oil Co., 194 Mo.App. 113; Ekonomou v. Greek Church, 280 S.W. 58. (b) Where the interest in the real estate has been conveyed the court is not authorized to dismiss the action without the authorization of the grantee. Norton v. Reed, 281 Mo. 482, 221 S.W. 6; Bank v. Wickham, 23 Mo.App. 663; Hawkins v. Frisco, 202 S.W. 1060. (c) The transfer and sale of real estate pending a suit to quiet title and remove cloud does not abate the action. State ex rel. v. Phillips, 97 Mo. 340; Smith v. Phelps, 74 Mo. 598; Asher v. Railroad Co., 89 Mo. 116.

John A. McAnally for respondent.

(1) Appellant contends that the plaintiff, Missouri State Life Insurance Company was entitled to the relief sought in the original petition and states that the original trustee's deeds were obtained by fraud, accident or mistake and that the rights of no innocent parties had intervened. The appellant here has not sought to have anything set aside except the tax deed, and, therefore, we deem it unnecessary to cite any authorities inasmuch as the original petition has been abandoned. (2) Under this point, appellant claims that defendant purchased with notice, due to the fact that notice lis pendens had been filed, but fails to cite any case establishing the fact that a notice lis pendens imparts any notice to a purchaser at a judicial sale under judgment and execution. The cases cited under this point by appellant are not in point and have no bearing on this case. (3) Under this point appellant states that defendant purchased subject to plaintiff's claim of ownership since plaintiff's suit to recover the property was instituted and notice lis pendens filed prior to the date judgment was rendered in the tax suit. In a suit for taxes, the statute provides that the real owner, if known, must be sued. If not, then the last record owner, and this was done in this instance. R. S. 1929, sec. 9953. (4) This assignment we do not think has any bearing on this case at all, in view of the decision of this court in the case here cited. Proctor v. Nance, 119 S.W. 409, 220 Mo. 115. (5) Under this point we refer the court to the same case of Proctor v. Nance, cited under Point (4), and we might here state that in our opinion it is clearly out of the question for appellant to recover as the assignee of Missouri State Life Insurance Company or General American Life Insurance Company. It makes no difference whether they were parties to the tax suit or not. They were not record owners. Under subdivision (4) of Point (5), plaintiff's tender of the amount of defendant's bid with interest and taxes was not sufficient and was of no avail to the plaintiff appellant here). Byer v. Conroys, 32 S.W.2d 763. Under subdivision (5) under this point, it is stated that if plaintiff claims under Rolwing the claim for surplus was only an effort to recoup a part of the purchase price which would otherwise have been taken by the districts which had no legal right to it. Appellant forgets that if Rolwing had purchased this property at the tax sale that the courts have held that he would merely have been paying his taxes, and that the rights of the districts would not have been affected, but that the property would still have been burdened with the liens. Little River Drainage Dist. v. Sheppard, 7 S.W.2d 1013. (6) Under this point and in answer to appellant's statement here, respondent again cites: Proctor v. Nance, 119 S.W. 409, 220 Mo. 115. (7) The court did err in setting aside the order abating the cause for the reason that a court on its own motion (no formal motion is necessary), may abate a cause of action upon the death of a party plaintiff, and the only way known to the law to get back into court is to revive that action in the names of those set out in the statute. R. S. 1929, secs. 891-905. (8) The record shows that the execution was returnable to the term at which the sale was had and no notice of levy was necessary, because this was a special fieri facias based on a judgment rendered against land and not a personal judgment rendered against an individual.

OPINION

Tipton, J.

This cause was instituted in the Circuit Court of Pemiscot County Missouri, was sent to the Circuit Court of Dunklin County, Missouri, on change of venue, and that court entered a judgment decreeing the title in the respondent. Edna Y. Husband, to the following described real estate situated in Pemiscot County, Missouri, to-wit: The South half (S 1/2) of the Northwest quarter (NW 1/4) and the...