Ward v. Morton

• Decision Date: 18 June 1922
• Docket Number: No. 22523.,22523.
• Citation: 294 Mo. 408,242 S.W. 966
• Parties: WARD v. MORTON.
• Court: Missouri Supreme Court

242 S.W. 966

294 Mo. 408

WARD v. MORTON.

No. 22523.

Supreme Court of Missouri, Division No. 1.

June 18, 1922.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Thomas B. Ward against Mrs. X. W. Morton to determine title to an interest in land. Judgment for defendant, and plaintiff appeals. Affirmed.

N. O. Hawkins, of Caruthersville, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

ELDER, J.

This is an action to determine title to an undivided one-fourth Interest in 40 acres of land in Pemiscot county.

The petition is In two counts. The first count alleges the ownership of plaintiff and that defendant is claiming adversely thereto; that on July 1, 1910, the collector of Pemiscot county filed an action in the circuit court of said county against Thomas B. Ward, plaintiff herein, William A. Ward, Jr., Mattie M. Coppedge and Dorothy McLarty, to collect delinquent taxes on the 40-acre tract in question; that summons therein was not issued until July 3, 1916, the same being made returnable to the third Monday in July, 1916, to wit, the 17th day of July, 1016, or 11 days subsequent to the issuance of said summons; that said summons was served on July 7, 1916, on T. B. Ward, W. A. Ward, M. M. Coppedge and D. Ward; that none of the persons named as defendants on said suit appeared either in person or by attorney and at the July, 1916, term of said circuit court the cause was continued on account of insufficient service; that on December 14, 1916, at the November, 1916, term of said court a judgment was rendered by default in favor of plaintiff and against the defendants in said cause; that thereafter execution was issued on said judgment and on August 1, 1917, the sheriff of Pemiscot county sold the land in question to R. L. Ward for $800 and made a sheriff's tax deed therefor; that said R. L. Ward at the time he bought said lands was the attorney for the defendants in said tax suit and did not have their authority or permission to buy said land; that on November 9, 1917, said R. L. Ward sold said lands by deed to one Joe Griggs for $1,000; that on February 3, 1919, said Griggs sold said lands by deed to one G. C. Stephens for $2,000; that on December 3, 1919, said Stephens sold the same to defendant herein for $3,000, and defendant now claims through and under such chain of title.

The first count of the petition further alleges that on December 30, 1916, plaintiff was sentenced by the circuit court of Pemiscot county to serve a term of two years' imprisonment in the Missouri penitentiary, for a felony, and on the same day was also sentenced by the same court, in a different case, to another two years' term of imprisonment in the Missouri penitentiary, said latter sentence to be cumulative and to begin at the expiration of the first sentence: that no appeal was ever taken from said judgments and plaintiffs served the term imposed, until,. he was released on November 18, 1918, and restored to citizenship; that the said circuit court of Pemiscot county did not appoint any guardian or trustee for plaintiff to appear for him and protect his interests in the tax suit aforesaid and that by reason of the sentences aforesaid he was unable to appear for himself or procure any one to appear for him. The petition then sets up the invalidity of the tax judgment, avers that defendant has not paid any taxes on the lands involved and that the persons from whom defendant bought the same have had the use and benefit of the profits therefrom and states that plaintiff is ready and willing to pay whatever amount of taxes with interest may be determined should be paid by him. The count concludes with a prayer that title to the land be tried and ascertained."

The second count of the petition is an action in ejectment, being conventional in form.

The answer as to both counts is a general denial. The answer also avers that defendant is the owner of the land in suit, having acquired by mesne conveyances from Joe Griggs; that in 1918 plaintiff made a deed to the said land conveying all his interest therein to his sister Dorothy McLarty; that said Dorothy McLarty brought suit against the then owner of the land, Joe Griggs, and that at the March term, 1918, of the circuit court of Pemiscot county a judgment was rendered adjudging title to be in said Joe Griggs; that thereafter said Griggs conveyed said land and it came down through warranty deed to plaintiff. The plea of res adjudicata is then set up. The answer further pleads an estoppel, alleging that plaintiff knew of the tax sale mentioned in the petition, that he knew of the judgment rendered in the suit brought by McLarty against Griggs, that he has paid no taxes on said land and made no claim thereto, and that by his acquiescence and silence he has caused plaintiff to purchase said land and make valuable improvements thereon.

The reply denies the allegations of the answer and avers that plaintiff was not a party to the action of McLarty against Griggs, and that neither McLarty nor Griggs obtained anything by the deed from plaintiff to McLarty for the reason that at the time of making such deed plaintiff was under sentences for felony as pleaded in the petition.

The cause was submitted to the court without the intervention of a jury.

Plaintiff introduced in evidence the petition, summons, and sheriff's return in the tax suit brought by Chas. R. Pierce, collector of Pemiscot county, against plaintiff and others; also the record entry of the judgment rendered in said cause showing a judgment by default against defendants for $192.29, rendered December 14, 1916; also deed from S. E. Slidell, sheriff of Pemiscot county, to R. L. Ward, dated August 1, 1917, reciting a consideration of $800, and conveying the land in controversy.

Plaintiff next introduced in evidence general warranty deed, dated November 9, 1917, from R. L. Ward and wife to Joe Griggs, consideration $1,000, conveying the land in suit; also general warranty deed, dated October 15, 1918, from Joe Griggs to G. C. Stephens, consideration $4,000, conveying the land in question and other land; also general warranty deed, dated December 3, 1919, from G. C. Stephens and wife to Mrs. Z. W. Morton, defendant herein, consideration $3,000, conveying the land in controversy.

Plaintiff then offered in evidence a judgment of conviction, rendered December 30, 1914, sentencing plaintiff to a term of two years in the Missouri penitentiary; also another judgment of conviction, rendered the same day, sentencing plaintiff to a like term of two years in the penitentiary, such term to be cumulative and to begin at the expiration of the first sentence imposed; also a pardon granted plaintiff by Frederick D. Gardner, Governor of Missouri, dated October 1, 1919, restoring plaintiff to all of his civil and political rights and the rights of citizenship; also a stipulation to the effect that on December 30, 1914, when convicted and sentenced, plaintiff had been paroled for four years, that he was never incarcerated in the penitentiary, that he never served any time under either of the sentences pronounced, that he was not taken charge of by the sheriff at any time, but that he was allowed to remain at large and was finally discharged by the court.

It was admitted that William A. Ward, father of plaintiff, was the original owner of the land involved herein; that he died March 25, 1912, leaving a widow and four children, to wit, Thomas B. Ward, the plaintiff, Mattie Coppedge, William A. Ward, Jr., and Dorothy Ward, afterwards Dorothy McLarty; that prior to the filing of the instant suit the widow died; that the administration of William A. Ward's estate was finally settled and all of his land was sold to pay debts except that in controversy which was sold for taxes.

To sustain the issues for defendant there was introduced in evidence a warranty deed from plaintiff and wife, Mattie M. Coppedge and husband, and William A. Ward, Jr., and wife, to Dorothy McLarty, dated February 15, 1918, consideration $1, conveying the land here involved and other lands; also the petition, summons, return of sheriff, and answer in the suit of Dorothy McLarty against Joe Griggs, filed February 16, 1918, being a suit to quiet title to the land, in question and other lands; also the judgment and findings of fact in said case, whereby it was adjudged that Dorothy McLarty had no title, the court finding that said McLarty had, on February 15, 1918, received a deed to the land in question from plaintiff and wife, William A. Ward, Jr., and wife, and Mattie M. Coppedge and husband, but that she had obtained no title thereby as the interest of the grantors had been acquired by R. L. Ward under the tax suit brought by the collector of Pemiscot I county, and had subsequently been conveyed I by said Ward to Joe Griggs, in whom the court held title was then well vested.

Defendant also offered in evidence the motion for new trial in the suit of McLarty v. Griggs, the order overruling the same, and the mandate of this court affirming the judgment rendered in said suit. See opinion in 222 S.W. 391.

The foregoing constituted substantially all the evidence offered in the case. The judgment was for defendant on both counts of the petition. From this judgment plaintiff has appealed.

I. Plaintiff contends that the court erred in finding for defendant for the reason that the judgment rendered in the tax suit of Pierce, collector, against plaintiff and others, and the deed from plaintiff and others to Dorothy McLarty, are both void because plaintiff was under sentence to the penitentiary at the time said judgment was rendered and said deed was made.

In support of the contention urged, plaintiff cites section 2291, R. S. Mo. 1919, which provides that "a sentence of imprisonment in the penitentiary for a term less than life suspends all civil rights of the persons so sentenced during the term thereof," etc. Plaintiff also cites ...