Wengler v. McComb
| Decision Date | 05 July 1916 |
| Docket Number | No. 17943.,17943. |
| Citation | 188 S.W. 76 |
| Parties | WENGLER v. McCOMB. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.
Suit to quiet title by Julia Werth Wengler against A. C. McComb. Judgment for defendant and plaintiff appeals. Reversed and remanded, with directions.
Daniel C. Ketchum, of Kansas City, and C. E. Covert, of Houston, for appellant. G. C. Dalton, of Salem, and Lamar & Lamar, of Houston, for respondent.
This is a suit to quiet title under section 2535, R. S. 1909, to the north half of section 8, township 30, range 7 west, in Texas county. On a trial before the court judgment was rendered in favor of the defendant, from which plaintiff appeals.
The petition is in the usual form. The answer denies plaintiff's claim, sets up a tax deed as the basis of title in defendant, and in addition pleads estoppel, laches, and a special statute of limitations (section 11506a, R. S. 1909) in bar of plaintiff's right to a recovery, and asks affirmative relief in that it be adjudged if this defendant has no title to the land that the plaintiff be required to refund to defendant all taxes paid on said land with interest at 6 per cent. from the date of payment, and that said amount be declared a first lien against said land, and for such relief as to the court may seem just and proper in the premises. The reply is a general denial.
Henry W. Werth is the common source of title. He died intestate October 31, 1886, seised of the land in controversy, leaving as his heirs his widow, Minnie A. Werth, and their children, Harry, Augusta and Julia, the plaintiff, who married Charles H. Wengler in 1891. In 1895 Harry died single. In 1899 Augusta and Julia conveyed to their mother, Minnie A. Werth, their interests in all the lands of which their father died seised in Texas county and other counties named in the conveyance. At the time of the institution of the suit for taxes this deed was of record in Texas county. In 1908 the mother, Minnie A. Werth, died intestate seised of the land herein, so far as a conveyance of same was effected by said deed, leaving as her sole heirs Augusta, who had in 1899 intermarried with one William D. Koehler, and Julia W. Wengler, the plaintiff. The original action was brought by Julia and Augusta, but upon the death of the latter in 1912 her husband conveyed his interest in the land to Julia, who filed an amended petition as sole plaintiff. Her title was therefore by inheritance and purchase. Its formal regularity is not questioned.
The following facts define defendant's title: In July, 1900, a judgment for back taxes on the land in controversy was rendered in the circuit court of Texas county against the said Henry W. Werth, and in November, 1900, the land was sold under execution to satisfy same, John E. Organ becoming the purchaser. In consummation of this sale the sheriff made a deed to the land to said Organ, who in July, 1906, sold and conveyed the same by warranty deed, his wife joining therein, to the defendant. Neither of the parties to this suit has been in actual possession of the land or exercised acts of ownership except that defendant has paid the taxes.
I. Notice of Ownership. — The statute (section 11498, R. S. 1909) authorizing actions of this character requires that they shall be brought "against the owner of the property, if known, and, if not known, then against the last owner of record as shown by the county or city records at the time the suit was brought." At the time of the institution of the suit for taxes which resulted in the sale of the lands here in controversy Henry W. Werth was "the owner of record" of same. The requirement of the statute in this regard was therefore met in the manner in which the suit was brought. This conclusion, however, is subject to the limitation that there was then on record a deed from Augusta H. Werth and Julia Werth Wengler showing on its face that said Henry W. Werth was dead, and that the conveyance was made by the grantors as his children to Minnie A. Werth "to all lands in Texas county (and other counties named) of which said Henry W. Werth died seised."
While it is no doubt true that this deed is insufficient, on account of the absence therefrom of a description of the land, to convey the interests of the grantors therein (Sims v. Brown, 252 Mo. 58, 158 S. W. 624; Shroeder v. Turpin, 253 Mo. 258, 151 S. W. 716), the question remains whether it did not on its face give such notice to the sheriff, who was required to bring the suit for taxes, of the death of said Henry W. Werth as to render it necessary for him to bring the action, not against Henry W. Werth, but his heirs.
It was held by the Court of Appeals of Virginia (Munday v. Vawter, 3 Grat. [Va.] loc. cit. 545) that a deed in which the sole description of the property was "all the estate, both real and personal, to which the said James was in any manner entitled to in law or in equity," despite the absence of a description of the land intended to be conveyed, was valid between the parties, but that the registry of the deed, because of the want of a description, did not constitute notice in point of law to a subsequent purchaser from the grantor of the existence of the deed, nor would notice of its existence affect such purchaser unless he had further notice that the land referred to was embraced within the provisions of the deed.
This conclusion, in the protection it affords the purchaser in good faith and for value, accords with justice and reason; but the facts here are different. A public officer is charged with the enforcement of a lien against the land, under a statute which enjoins upon him the duty of ascertaining from the records the ownership of the land against which suit is to be brought. This is a prerequisite to this action. The deed, it is true did not contain a specific description of the land, but aside from this omission no stronger constructive evidence could have been induced than it afforded. It contained all the formalities attending a conveyance of real estate. It named the parties, declared that the theretofore record owner was dead, and conveyed "all the lands in Texas county of which their father, Henry W. Werth, died seised." To this was appended a formal acknowledgment such as is required by the statute.
We held in Stuart v. Ramsey, 196 Mo. 415, 95 S. W. 382, that when a purchaser at a tax sale had been orally informed beforehand, by persons claiming to be familiar with the facts, of the ownership of land under an unrecorded deed, he would be charged with notice of such ownership sufficient to authorize a collateral attack on the judgment, although the sheriff's deed was regular on its face. There the actual notice, being by word of mouth, was, if possible, not so strong, and certainly not as direct, as the constructive notice in the case at bar.
Important as the foregoing may be in a case where the question as to the right of collateral attack of a judgment is directly involved, and as a consequence it is necessary to determine the extent to which a sheriff before bringing an action...
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Horton v. Gentry
... ... of 1877 under special execution to enforce a judgment in a ... back tax suit as is the instant deed. Wengler v. McComb ... (Mo.), 188 S.W. 76, 78[4]; Williams v. Sands, ... 251 Mo. 147, 165(V), 158 S.W. 47, 51(5); Gulley v ... Waggoner, 255 Mo. 613, 625, ... ...
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...nor assignees were made parties to the tax suit. A judgment against a dead man is a nullity. Crosley v. Hutton, 98 Mo. 196; Wengler v. McComb, 188 S.W. 76; LaClede Land Co. v. Goodno, 181 S.W. 410; v. Jorndt, 168 S.W. 734; Jacobs v. Trimble, 310 Mo. l.c. 157, 274 S.W. 1075; Graves v. Ewart,......
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...Gulley v. Waggoner, 255 Mo. 613, 620(I), 624, 164 S.W. 557, 558(1), 560; Workman v. Moore, Mo.Sup., 177 S.W. 862, 864; Wengler v. McComb, Mo.Sup., 188 S.W. 76, 78; Keaton v. Hamilton, 264 Mo. 564, 577(IV), 175 S.W. 967, 970; Horton v. Gentry, 357 Mo. 694, 700, 210 S.W.2d 72, 75; and see Gra......
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...nor assignees were made parties to the tax suit. A judgment against a dead man is a nullity. Crosley v. Hutton, 98 Mo. 196; Wengler v. McComb, 188 S.W. 76; LaClede Land Co. v. Goodno, 181 S.W. 410; Keaton v. Jorndt, 168 S.W. 734; Jacobs v. Trimble, 310 Mo. l.c. 157, 274 S.W. 1075; Graves v.......