Wetmore v. Berger

• Decision Date: 02 July 1945
• Docket Number: 39386
• Citation: 188 S.W.2d 949,354 Mo. 158
• Parties: Carlotta M. Wetmore v. Paul William Berger, Appellant
• Court: Missouri Supreme Court

188 S.W.2d 949

354 Mo. 158

Carlotta M. Wetmore v. Paul William Berger, Appellant

No. 39386

Supreme Court of Missouri

July 2, 1945

Appeal from Circuit Court of St. Louis County; Hon. Fred E Mueller, Judge.

Reversed and remanded.

Leon M. Feigenbaum and Jesse E. Bishop for appellant.

(1) The demurrer was an improper pleading, at this time, in a suit to quiet title, because it was filed out of time; and it admitted the facts. State ex rel. v. Rogers, 77 Mo 283; Shoe Co. v. McDonald, 122 S.W. 5. (2) It failed to deny appellant's affirmative defenses. Ry. Co. v Railroad, 158 S.W. 359; Miller v. Allen, 192 S.W. 967. (3) Appellant's answer set up new matter, which required reply by respondent. Summet v. City Realty & Brok. Co., 106 S.W. 614, 208 Mo. 501; Mahaffey v. Lebanon Cemetery, 161 S.W. 701, 253 Mo. 135. (4) The court erred in sustaining respondent's motion to strike. He thereby struck two valid defenses from the answer. Execution of the deed in the name of the collector as grantor, and not the State of Missouri. Sec. 11149, R.S. 1939; Large v. Fisher, 49 Mo. 307; Schlafly v. Baumann, 108 S.W.2d 363. (5) And inadequacy of consideration in the sale. Mangold v. Bacon, 141 S.W. 650, 237 Mo. 496; Van Grafeiland v. Wright, 286 Mo. 414; State ex rel. v. Davidson, 286 S.W. 355; Ellis v. Powell, 117 S.W.2d 225. (6) The court erred in sustaining respondent's demurrer to appellant's answer which, then, still contained six good defenses, including these, that the collector failed to insert a copy of the sale notice at the foot of the tax list. Sec. 11126, R.S. 1939; Meriwether v. Overly, 228 Mo. 218; State v. Bader, 78 S.W.2d 835; Schlafly v. Baumann, 108 S.W.2d 363. (7) That the collector neither advertised nor sold all the taxes. Sec. 11126, R.S. 1939; Martin v. Kitchen, 195 Mo. 477. (8) That the purchaser failed to pay all the taxes accrued since the sale. Sec. 11152, R.S. 1939; Large v. Fisher, 49 Mo. 307; Schlafly v. Baumann, 108 S.W.2d 363. (9) That through the medium of conspiracy and fraud, the purchaser paid $ 115.45 for the balance of $ 363.17 of taxes on the books. Sec. 11130, R.S. 1939; Lindsay v. St. Louis, 139 S.W.2d 906. (10) The court erred in failing and refusing to render judgment for appellant, under the pleadings, and the evidence adduced. Sec. 11130, R.S. 1939; Ry. v. Railroad, 158 S.W. 359; Mahaffey v. Lebanon Cemetery, 161 S.W. 701, 253 Mo. 135.

Edwin Rader and T. Douglas Moore for respondent.

(1) The appellant having failed to file either a motion to set aside the default judgment or a motion for a new trial cannot be heard to complain of any error of the trial court. St. Louis v. Boyce, 31 S.W. 594, 130 Mo. 572; Sec. 1171, R.S. 1939; Printing Co. v. Aufderheide, 45 S.W.2d 543, 226 Mo.App. 680. (2) It is proper under the code of civil procedure for a plaintiff to demur to an answer of defendant on the grounds that the facts pleaded did not constitute a defense to plaintiff's cause of action. Sec. 931, R.S. 1939; St. Louis Gas Light Co. v. St. Louis, 84 Mo. 202; Howell v. Stewart, 54 Mo. 400. (3) The Jones-Munger Law has been held constitutional and the pleading of its unconstitutionality was properly stricken. State ex rel. Karbe v. Bader, 78 S.W.2d 835, 336 Mo. 259; Kennen v. McFarling, 165 S.W.2d 681. (4) A collector's deed after a delinquent tax sale is executed by the collector as governed by the statutes applicable thereto, which prescribe and detail the form of the deed. Section 11150, R.S. 1939; Burris v. Bowers, 181 S.W.2d 520. (5) A party acquiring an interest in real estate after such is sold for delinquent taxes cannot claim that at such sale there was an inadequate consideration paid which amounted to constructive fraud. Fraud is an individual and personal thing and the person against whom such is committed can alone complain. Hobson v. Elmer, 163 S.W.2d 1020; 37 C.J., secs. 345, 346. (6) A suit against a defunct corporation must be brought against the last named board of directors as existing prior to the disfranchising of the corporation. Sec. 5094, R.S. 1939; Watkins v. Mayer, 103 S.W.2d 566; Nudelman v. Thimbles, Inc., 225 Mo.App. 553, 40 S.W.2d 475; Sager v. State Highway Comm., 125 S.W.2d 89. (7) A defendant in a quiet title suit must recover on the strength of his own title and not on the weakness of the plaintiff's title. Cullen v. Johnson, 29 S.W.2d 39, 325 Mo. 253; Bostwick v. Freeman, 160 S.W.2d 713; Brown v. Weare, 152 S.W.2d 649, 136 A.L.R. 286. (8) If a defendant has no title to the real estate involved he cannot claim irregularities or invalidities in the plaintiff's chain of title. Bostwick v. Freeman, 160 S.W.2d 713; Cullen v. Johnson, 325 Mo. 253, 29 S.W.2d 39; Senter v. Wisconsin Lbr. Co., 255 Mo. 590, 164 S.W. 501; Wheeler v. Reynolds Land Co., 193 Mo. 279, 91 S.W. 1050; Parker v. Wear, 230 S.W. 75.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action to determine title to a lot in University City, St. Louis County. Defendant, on January 23, 1943, at the January term, for amended answer, alleged that plaintiff claimed some interest in the lot and denied generally other allegations of the petition. Then defendant cross complained and asked that title be adjudged to be in him. At the September term, and on October 4, 1943, a motion to strike certain parts of the crossbill was sustained, and on February 23, 1944, at the January term, a general demurrer to the remaining part of the answer and crossbill was sustained. Defendant did not plead further, and on April 12, 1944, during the January term, "the court, by an order duly made and entered of record, granted plaintiff a default and inquiry in said cause." On May 31, 1944, at the May term, plaintiff testified briefly, introduced her collector's deed, and fee title was adjudged to be in her, and it was adjudged that defendant had no right, title or interest in said lot, and he appealed.

Defendant (appellant) filed a motion, which was taken with the case, to strike an additional abstract filed by plaintiff (respondent). The motion to strike the additional abstract is overruled.

The lot involved was sold under the Jones-Munger law on November 16, 1938, for the 1931 state and county taxes. One Jack Dean was the highest bidder on a bid of $ 3.20 and received a certificate of purchase. This certificate was thereafter assigned to plaintiff. No redemption was made and the county collector made his collector's deed to plaintiff on August 7, 1942, and on same day, this deed was filed for record. This suit was filed August 13, 1942.

We gather from the pleadings and the briefs that defendant's claim of title was derived as follows: In 1931, title to the lot was in the D.V.W. Realty Company, a corporation. A special tax bill in favor of University City had been issued against the lot and suit had been brought on this tax bill to enforce the lien thereof against said lot. The style of that suit was, "The City of University City ex rel. University City Bank & Trust Company v. D.V.W. Realty Company." Leon M. Feigenbaum acquired the special tax bill while the suit thereon was pending and he was substituted as relator in the suit on the special tax bill. The tax bill suit went to judgment for $ 1879.34, and under a special execution based on this judgment, the lot was sold to defendant by the sheriff on December 22, 1941, on an alleged bid of $ 1,000.

Defendant (appellant) complains of the action of the trial court in sustaining the motion to strike a part of the crossbill, and in sustaining the demurrer to the remaining part of the answer and crossbill. Defendant did not file a motion to set aside the default judgment nor did he file a motion for a new trial. In such situation plaintiff says that defendant "cannot be heard to complain of any error."

In the crossbill defendant alleged: (1) That the Jones-Munger law was unconstitutional and void because it denied due process (2) that the tax deed upon which plaintiff relied is void because the collector failed to insert in the delinquent tax book a copy of the published sale notice; (3) because it designated the collector instead of the State as the grantor; (4) because the collector failed to advertise all the delinquent taxes against the lot; (5) because neither Dean nor plaintiff paid the taxes due on the lot at the time of the execution of the collector's deed; (6) because Dean and one Vornbrock, a member of the last board of directors of the D.V.W. Realty Company, entered into a conspiracy to defraud the county out of the taxes due on the lot, and to defraud defendant out of his title; (7) because at the time of the tax sale by the collector the lot was of the reasonable value of $ 1500, and Dean bid only $ 3.20, and that only $ 115.45 in taxes were paid when the tax deed was executed, and that "these amounts were so grossly inadequate and out of proportion to the true value of this property as to shock the good conscience of this court"; (8) that defendant held the fee title to the lot by reason of the sheriff's deed to him December 22, 1941; and (9) "defendant further states that because of the facts that his title was derived from the D.V.W. Realty Company, a corporation, who have for many years past lost their right to do business as well as have forfeited their state charter; and that said last named board of directors had not been joined as defendants at the time of said decree (in the special tax bill case) of October 2, 1941, and that, therefore, it will be necessary to join in this suit, as additional parties defendant, these three persons named: Walter G. Vornbrock, Sr., Everett Davis and Earl Watkins, all of them being residents of St. Louis County, Missouri, who are shown as the last named board of directors of said corporation, and therefore, are now,...