Williams v. Sands

• Decision Date: 17 June 1913
• Parties: WILLIAMS v. SANDS et al.
• Court: Missouri Supreme Court

158 S.W. 47

WILLIAMS v. SANDS et al.

Supreme Court of Missouri, Division No. 2.

June 17, 1913.

1. QUIETING TITLE (§ 22) — PROOF — COMMON SOURCE OF TITLE.

Where both plaintiff and defendant claim under a common source of title in a proceeding to determine interest under Rev. St. 1909, § 2535, the only question is who has the better title from such common source.

2. QUIETING TITLE (§ 44) — ACTION — SUFFICIENCY OF EVIDENCE.

Evidence in an action to determine interest and quiet title held to sustain a finding that plaintiff was the sole heir at law of the patentee of the land involved.

3. APPEAL AND ERROR (§ 1009) — FINDINGS — CONCLUSIVENESS — TRIAL BY COURT.

Findings of fact by the trial court in a suit to quiet title are supported by the same presumptions as support a jury finding in an action at law.

4. TAXATION (§ 788) — TAX DEED.

A sheriff's deed for taxes in the usual form is prima facie valid.

5. TAXATION (§ 788) — TAX DEED — EVIDENCE.

While a sheriff's deed at a tax sale is prima facie proof of the matter stated therein, such prima facie showing may be rebutted by the proceedings in the tax suit, and the deed is invalid if the judgment of sale is found invalid upon an inspection of the whole record.

6. PROCESS (§ 91) — SERVICE OF SUMMONS — RETURN.

If the officer is unable to find defendant so as to obtain service of summons, he should retain summons until the return day, and an order of publication made upon a non est return made before the return day is void.

7. TAXATION (§ 805) — ESTOPPEL BY CONDUCT.

Defendant testified in an action to determine interest and quiet title that after he bought the land at a tax sale he had a conversation with plaintiff about 1903, in which plaintiff stated that his mother had furnished the money to purchase the land, and he would like to have it back, and would be willing to pay defendant what it cost him, and that defendant said that that would not suit him, when plaintiff remarked that he had "found some little irregularity in the title," without showing anything further. Defendant paid taxes on the land from 1898 to 1905. Plaintiff's father did not die until 1905, and plaintiff's suit was brought about three years thereafter. Held, that plaintiff was not estopped by his laches from claiming title.

8. EQUITY (§ 87) — DEFENSES — LACHES.

The equitable doctrine of laches is sometimes available as a defense, though the delay is much less than the period of limitations, being based on the theory that plaintiff's conduct has misled defendant to his injury, by causing him to make expenditures, etc.

9. TAXATION (§ 805) — TAX DEEDS — LIMITATION.

The three-year limitations contained in Revenue Act 1872, § 222 (Rev. St. 1909, § 11506a), only applies to tax deeds valid upon their face and issued pursuant to the suit.

10. TAXATION (§ 832) — TAX SALES — FAILURE OF TITLE — RECOVERY OF PRICE.

Between 1887 and the taking effect of Laws 1903, p. 254, persons paying taxes on lands purchased at tax sales were held to have acted as volunteers upon failure of their title, and could not recover taxes so paid in an action at law.

11. TAXATION (§ 821) — TAX SALES.

Laws 1903, p. 254, relating to recovery of taxes paid upon failure of title purchased at a tax sale, would not apply to sales for taxes before the act took effect.

12. TAXATION (§ 814) — ATTACK ON TAX TITLE — RELIEF TO DEFENDANT.

In an equitable proceeding to quiet title to land purchased by defendant at a tax sale on the ground that defendant's title under the tax deed failed, defendant is equitably entitled to recover back the purchase price with interest under the equitable maxim requiring plaintiff to do equity before he may have equity.

13. EJECTMENT (§ 142) — IMPROVEMENTS.

Whether recovery may be had for improvements in ejectment depends upon the time and circumstances under which the improvements were made.

Appeal from Circuit Court, Benton County; C. A. Denton, Judge.

Action by John Hall Williams against M. L. Sands and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action coming here on appeal from the circuit court of Benton county, involving the title to certain real estate situate in that county. The petition contains two counts — the first count is a suit to determine interest under section 2535; the second count is ejectment.

The answer is (1) a general denial; (2) a setting up of the manner in which defendants obtained their alleged title to the land in controversy, to wit, by purchase thereof at a tax sale; (3) a plea of the statute of limitations, vaguely averred; (4) a plea averring laches; and (5) finally, that if the decision of the court be adverse to them that they have judgment by way of counterclaim for the value of certain improvements which they aver they erected upon the land in question, and for the sums paid out by them as the purchase price at the sale for taxes, and for taxes paid on the land for some six years. The reply was a general denial of the new matter, an admission as to the then possession of the defendants, and an allegation that such improvements as were placed on the land were of no value thereto, adding naught to it of a permanent nature, and that the alleged improvements were put on the land by defendant J. G. White, acting merely as a lessee of the land from defendants M. L. Sands and J. W. Sands, who are claiming the title thereto. The cause was tried before the court sitting as a jury; no declarations of law were asked by or given for either side. The court found the issues for plaintiff upon both counts of his petition, adjudging him on the first count to be the owner in fee thereof and divesting the defendants of all title thereto, and on the second count adjudging to him ouster of defendants from the possession of said land. No finding whatever was made upon the equitable counterclaim of defendants for their improvements, for the sums expended by them as the purchase price of said land when bought at the tax sale, or for sums paid by them as taxes on the land since the tax sale and up to the time of the bringing of this suit. From the judgment in favor of plaintiff defendants, after the usual procedure, duly took and now prosecute this appeal.

The suit was brought on the 6th day of August, 1908; the land was sold for taxes as the land of "Sylvastus H. Williams," and bought in by defendants M. L. Sands and J. W. Sands on the 12th day of August, 1898. The proof adduced upon the trial on the part of plaintiff tended to show that plaintiff was the only child and the only heir at law of one Sylvester H. Williams; that said Sylvester H. Williams died on the 27th of April, 1905, leaving no widow surviving him. Plaintiff offered patents from the United States government to the land in question, conveying the same in fee to "Sylvestus H. Williams" of Benton county, Mo. Plaintiff showed that he had found these patents among the effects of his father after the latter's death; specifically that he had gotten them out of his dead father's trunk. Upon cross-examination plaintiff testified that he had never lived in Benton county except about eight months; that his residence was in Kansas City; that he had been known there in late years as "John F. Hall" and had been called and known there also as "John F. Williams"; that he had changed his name from Williams to Hall some seven or eight years prior to the trial. Plaintiff also testified that his father's true name was "Hall"; that his father was a British subject, who ran away from Toronto, Canada, at the beginning of the Civil War, and enlisted in the army under the name of "Williams," and that his father retained the name of "Williams" till his death. Plaintiff's testimony further showed that he had himself personal knowledge of his father's entry of the land in question and of his going to Boonville for the purpose of entering the same, and that the name mentioned in the patents is, or was intended to be, that of the identical person who was the father of plaintiff. By inference, though not pertinent here, it is to be gathered from the record that Sylvester H. Williams died in the Soldier's Home at Leavenworth, Kan. The mother of plaintiff and the wife of the said Sylvester died the 19th of April, 1901.

Defendants offered a tax deed under a sale of the land for taxes, which deed was dated the 12th day of August, 1898, recorded on the 27th day of August, 1898, and purported to convey to defendants M. L. Sands and J. W. Sands in equal shares the right, title, and interest of "Sylvester H. Williams" in the land in controversy. Defendants also offered the petition in the tax suit, which suit was brought against "Sylvastus H. Williams" and the summons issued thereon, which was made returnable "on the first Tuesday after the second Monday in December next, A. D. 1897." The sheriff's return upon this summons is as follows: "Sheriff's Return. Executed the within writ in the county of Benton, on the 23d day of November, 1897, by making diligent search for the within named Sylvastus H. Williams, and not finding him in my county. A. F. Prussing, Sheriff Benton County, Mo." This summons was issued on the 16th day of November, 1897, and was returned, so far as the record shows, on the 23d of November, 1897, though upon its face it was returnable on the "first Tuesday after the second Monday in December, 1897." At the December adjourned term, 1897, and on the 21st day of February, 1898, as appears from the proof of an order of publication published in the Warsaw Times, a weekly newspaper published in Warsaw, Benton county, Mo., an order of publication was made in the case of "the state of Missouri at the relation, etc., against `Sylvastus H. Williams,'" which, after reciting that the sheriff of Benton county, after making diligent search, was unable to find the said "Sylvastus H. Williams" in his said county, and "has returned said summons non est as to said defendants `Sylvastus Williams,'...