Wilcox v. Phillips

• Decision Date: 30 June 1914
• Docket Number: No. 16377.,16377.
• Citation: 260 Mo. 664,169 S.W. 55
• Parties: WILCOX et al. v. PHILLIPS et al.
• Court: Missouri Supreme Court

169 S.W. 55

260 Mo. 664

WILCOX et al. v. PHILLIPS et al.

No. 16377.

Supreme Court of Missouri, Division No. 1.

June 30, 1914.

Rehearing Denied July 14, 1914.

1. APPEAL AND ERROR (§ 1097)—DECISION ON PRIOR APPEAL—REVERSAL—REMAND.

Where, after reversal on a prior appeal in an ejectment suit, the pleadings were amended without defendants' objection so as to incorporate a cause of action to quiet title, defendants could not successfully claim on a subsequent appeal that the judgment rendered on the prior appeal was res judicata and that the court had no jurisdiction to permit an amendment of the pleadings.

2. APPEAL AND ERROR (§ 1097)—DECISION ON PRIOR APPEAL — REVIEW ON SUBSEQUENT APPEAL.

Where, by inadvertence of counsel or the appellate court, a former appeal broke on a proposition which, when illuminated by new discussion and mature consideration on a subsequent appeal, the court deemed to need modification, it was its duty to make such modification without reference to the conclusiveness of the prior decision.

3. APPEAL AND ERROR (§ 1201)—DISPOSITION OF CAUSE—REVERSAL—DIRECTIONS—AMENDMENT OF PLEADINGS.

Where a judgment was reversed with directions to the trial court to proceed in accordance with the opinion, such directions did not limit the court to mere entry of judgment in accordance with the opinion, nor did they preclude the court from allowing an amendment of the pleadings so as to change the issues.

4. CONSTITUTIONAL LAW (§ 251)—"DUE PROCESS OF LAW"—"LAW OF THE LAND."

"Due process of law" means law in the regular course of administration through the courts, and is equivalent to the term "law of the land," which means the general law, a law hearing before it condemns, and which proceeds on inquiry and renders judgment only after trial. Due process of law depends on service, to wit, notice, and without notice due process is not given.

5. PUBLIC LANDS (§ 112)—PATENTS—REGISTRATION.

Under the acts of Congress providing for the record of all patents issued by the United States for land in an office and in books kept for that purpose at the seat of government, the recorder being required to record every patent before it is issued and to countersign the instrument to be delivered to the grantee, a further record of such a patent in the recorder's office in the county where the land is situated is not necessary, either to pass title or impart notice of the title so conveyed, as a matter of law, though the patent may be so recorded under the permissive provisions of Rev. St. 1909, § 10,390.

6. TAXATION (§ 730)—TAX SALES—PROCEEDINGS —TITLE OF PURCHASER.

Since an owner of land can be deprived thereof for nonpayment of taxes only by suit brought against him in the ordinary manner, the rights of a purchaser at a tax sale are only those which would be acquired by a purchaser of land sold under execution.

7. TAXATION (§ 730)— TAX SALES — OUTSTANDING TITLE—RECORD.

Notice of an outstanding title may be imparted by facts outside the record as well as by the record itself.

8. TAXATION (§ 730) — TAX SALES — OUTSTANDING TITLE—NOTICE.

Where a purchaser at a tax sale has knowledge of facts and circumstances prompting an inquiry on the part of a reasonably prudent person, and such inquiry from the proper source would have disclosed an outstanding title, then the purchaser takes nothing by the tax deed, under the rule that legal notice follows facts sufficient to put a person on such inquiry.

9. TAXATION (§ 734)—TAX SALES—NOTICE— OUTSTANDING TITLE.

Where officers charged with the collection of taxes had notice that W. or her heirs were the owners of land assessed on which taxes were delinquent, they having paid taxes on the land for many years immediately prior to the delinquency, but W. was dead at the time suit was brought against her and prior owners, in which it was alleged, found, and adjudged that she was the owner of the land, no attempt having been made to make her heirs parties to the proceeding or serve them with process, a sale under such judgment was void.

10. TAXATION (§ 799)—CLOUD ON TITLE—INVALID TAX DEED—REMEDY AT LAW.

It was not a valid objection to a bill to set aside a tax deed as a cloud on complainants' title that the deed and the judgment under which the property was sold were void on their face, and that complainants therefore had an adequate remedy at law.

Appeal from Circuit Court, Putnam County; Geo. W. Wanamaker, Judge.

Ejectment and bill to quiet title by William A. Wilcox and others against J. E. Phillips and others. Judgment for defendants John M. Campbell and Arthur D. Campbell, and plaintiffs appeal. Reversed, and judgment ordered for plaintiffs.

See, also, 199 Mo. 288, 97 S. W. 886.

D. M. Wilson and J. W. Clapp, both of Milam, A. W. Mullins, of Linneus, and G. W. Haverfield, of Kansas City, for appellants. N. A. Franklin, of Unionville, Jno. W. Bingham and Calfee & Painter, all of Milam, and Campbell & Ellison, of Kirksville, for respondents.

LAMM, C. J.

Plaintiffs sued defendants Phillips and Reed in the Sullivan circuit court in 1902 in straight ejectment for 120 acres of land situate in that county, to wit, the S. ½ N. W. ¼ and the N. E. ¼ S. W. ¼, section 3, township 63, range 18. Reed and Phillips held a warranty deed from Campbell and Campbell. The latter, on motion, were permitted to come in as codefendants because in privity with Phillips and Reed as warrantors of their title, and filed answer, thereby making denials, but admitting the possession of Reed and Phillips. Reed and Phillips answered admitting possession and making a general denial of other averments.

Plaintiffs are the living (and descendants of deceased) sons and daughters of Abbie D. Wilcox, who (they claim) died seised of the land.

Presently plaintiffs recovered, and defendants appealed here. In 1906 that judgment was reversed (199 Mo. 288, 97 S. W. 886), and the cause was remanded for a new trial, with directions hereinafter noticed. When the case went down plaintiffs, without objection, filed an amended petition in two counts. The first count was in ejectment in conventional form, as was the original petition; the second count was a bill in equity to clear up their title. In the meantime (in 1906) Phillips and Reed had reconveyed to their codefendants, Campbell and Campbell, by quitclaiming the premises to them. (Note: They had paid a small sum down and had given a note and deed of trust to secure the balance of the purchase price, which note was surrendered to them by Campbell and Campbell, the latter repaying to Phillips and Reed their outlays. We find no answer filed by Phillips and Reed to plaintiffs' amended petition.) The issues were apparently made up by Campbell and Campbell filing an answer to the amended petition and plaintiffs replying thereto. This answer admits possession in Campbell and Campbell, and they assume the burden of the defense, Phillips and Reed apparently dropping out. The cause came on for its new hearing in the Putnam circuit court on change of venue granted on the Campbells' application. Presently on such hearing the court found for defendants on both counts, and from a judgment following in defendants' favor, plaintiffs in turn appeal.

Briefly in outline the case is this: Charles Jones was a private in Capt. Alsberry's company, Kentucky militia, in the War of 1812 That company was in the military services of the United States in that war. Jones duly received a military land warrant entitling him to locate 120 acres of land as bounty lands for his services as such soldier. Thereupon Jones transferred his warrant to William H. Brownlee. Thereupon Brownlee, in the proper local land office, located the warrant upon the land in suit, and in turn received a due official certificate of such location, which he duly assigned to one James Montgomery. By virtue of such warrant, such assignment of the warrant, such location of the warrant upon the land in dispute, such certificate of location, and such assignment of such certificate (and on due showing made of all such facts), James Buchanan, on the 16th day of June, 1860, acting for the government of the United States, as President, duly issued a patent to that Montgomery for said lands, and said patent was at once duly recorded as required by United States statute in volume 215, p. 286, in the office of the Recorder of the General Land Office, at Washington, D. C. This patent was not recorded in the office of the recorder of deeds of Sullivan county until 42 years passed, to wit, on the 2d day of August, 1902.

At the time the presently mentioned tax suit was brought the records of Sullivan county showed as follows: (1) A tract book, duly certified by the proper local land office register, duly on file, showing the land entered by W. H. Brownlee as entryman in 1857; (2) The consolidated back tax book showing in a column headed "Owner" that W. H. Brownlee, James Montgomery, Abbie D. Wilcox or "her heirs" were owners; (3) and the deed records showing a chain of title by duly recorded deeds beginning with James Montgomery and ending with a deed to Abbie D. Wilcox.

Plaintiffs claim under said patent and said mesne conveyance duly recorded. Defendants claim under a tax suit in the Sullivan circuit court (against said Brownlee, said Montgomery and said Abbie D. Wilcox, she, as said, being plaintiffs' ancestor), such suit ripening into a judgment in April, 1900, followed by a special execution thereon, a levy, a sale made in October, 1900, and a sheriff's deed to defendants Campbell and Campbell, purchasers.

There was no service in the tax suit on James Montgomery, patentee, but W. H. Brownlee, entryman, was personally served, and made no defense. As to Abbie D. Wilcox, she was ostensibly served by an order of publication, but, in fact, had died in 1884. Her husband, William, died in 1889. None of plaintiffs were parties to that suit. The delinquent taxes merged in the tax judgment were assessed and levied for the years...