Wilson v. Fisher

• Decision Date: 18 February 1903
• Citation: 172 Mo. 10,72 S.W. 665
• Parties: WILSON v. FISHER.
• Court: Missouri Supreme Court

72 S.W. 665

172 Mo. 10

WILSON v. FISHER.

Supreme Court of Missouri, Division No. 1.

February 18, 1903.

DEEDS — TAX SALES — SUBSEQUENTLY ACQUIRED TITLES.

1. The owner of certain land conveyed it by warranty deed, and afterwards made a similar conveyance to another. Shortly after this second conveyance the land was sold under a tax judgment against the second grantee, and again under a judgment against him and the purchaser at the first sale. Subsequent to the rendering of this second judgment the first grantee reconveyed his interest to the original grantor, which the second grantee had also done at about the time of the second judgment. Held that, since none of the defendants in the tax suits had title at the time of the judgments therein, the title passed by the first grantee to the original grantor did not inure to the benefit of the purchasers at the second sale, and was not within Rev. St. 1899, § 4591, providing that, when a grantor having no title undertakes to convey an "indefeasible estate in fee simple absolute," a legal estate subsequently acquired by him shall inure to the benefit of his grantee.

2. By these reconveyances the original grantor becomes again seised and possessed of an indefeasible estate in fee-simple absolute, which he could pass by a subsequent conveyance.

Appeal from circuit court, Webster county; Argus Cox, Judge.

Action by Eliza Wilson against William Fisher. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action in ejectment for the N. ½, S. E. ¼, section 21, township 28, range 16 W., in Webster county. The petition is in the usual form, and the answer is a general denial. It is claimed that Henry C. Page is the common source of title. On January 16, 1863, Henry C. Page conveyed the land to Charles E. Page by a general warranty deed, which was properly recorded on August 18, 1865. There is no evidence in this record that Charles E. Page ever was in possession of the land at any time. In 1869, Henry C. Page conveyed the land by warranty deed to Emma S. Page. The plaintiff claims title in the following way: On September 13, 1893, Emma S. Faull (née Page) quitclaimed the land to Henry C. Page. On December 23, 1893, Charles E. Page reconveyed the land by a quitclaim deed to his grantor, Henry C. Page. Thus Henry reacquired all the interest and title he had conveyed to Charles and Emma, and on January 2, 1894, Henry C. Page quitclaimed the land to W. S. Thompson. On March 30, 1894, W. S. Thompson conveyed the land by a general warranty deed to I. S. Wilson, who is the husband of the plaintiff. Just here appears a very unaccountable incident or link in the chain of circumstances. Notwithstanding Charles E. Page reconveyed the land to Henry C. Page on the 23d of December, 1893, Charles E. Page began an action in ejectment for the land against one Jonathan Sherrills, who was in possession of the land, returnable to the March term, 1894. I. S. Wilson (who had purchased from W. S. Thompson as aforesaid, and who in turn had purchased from Henry C. Page, who had reacquired the title from Charles E. Page) voluntarily appeared and was made a party defendant, and defended the suit, with the result that a judgment was entered in his favor, but the costs were, for some unexplained and inconceivable reason, adjudged against him. He did not pay the whole of the costs, and so an execution was issued against said I. S. Wilson, and levied on the land, and it was sold by the sheriff on September 16, 1895, to satisfy said execution for costs, and W. T. Brewer became the purchaser. Brewer quitclaimed the land to Thos. W. Hunt on November 28, 1898, and Hunt quitclaimed the land to Eliza Wilson, the plaintiff herein, and the wife of I. S. Wilson, on the same day. The judgment against Wilson for the costs in the ejectment case brought by Charles E. Page was entered on March 30, 1894. Thereafter, on September 17, 1894, Wilson quitclaimed the land to W. E. Beason, and on the same day Beason quitclaimed the land to Eliza Hunt, who is now Eliza Wilson, the second wife of I. S. Wilson. On the other hand, the defendant claims title in this way: After Henry C. Page had conveyed the land in 1863 to Charles E. Page, he (Henry) on September 29, 1869, conveyed it by warranty deed to Emma S. Page. She afterwards married J. P. Faull. The taxes on the land became delinquent for the years 1874, 1879, 1880, and 1881, and the collector brought suit to recover the same, and made Emma S. Faull and J. P. Faull, her husband the parties defendant. A judgment was rendered on September 24, 1881, and on the 18th of March, 1885, the land was sold under said judgment, and Naomi Wilson, the first wife of I. S. Wilson, became the purchaser. She appears to have entered into possession through her tenants, of whom was Jonathan Sherrills, the original defendant in the ejectment suit brought in 1894 by Charles E. Page against Jonathan Sherrills. The taxes for 1887, 1888, and 1889, became delinquent, and the collector brought suit for them, making Emma S. Faull, late Emma S. Page, and J. P. Faull, her husband, and I. S. Wilson, and the unknown heirs of Naomi Wilson, parties defendant. It will be noted that Naomi Wilson was the first wife of I. S. Wilson, and had purchased the land at the first tax sale in 1885, and held the possession through her tenant Sherrills afterwards, and she it seems had died about the year 1888. Judgment was entered in this second tax suit, and the land was sold on March 19, 1894, to Annot A. Marvin. On February 11, 1898, Andrew J. Marvin contracted with the defendant, William Fisher, to sell him the land for $150, $25 to be paid on October 1, 1898, and the balance in annual installments of $12.50, the deed to be made when the purchase price was fully paid. The contract, in its body, recites that it is between Andrew J. Marvin, party of the first part, and Will Fisher, party of the second part, and it is signed "Will Fisher. [Seal.] Annot A. Marvin. [Seal.] A. J. Marvin [Seal.], Agent for Annah A. Marvin." A. J. Marvin testified that he bought the land from I. S. Wilson, giving him therefor a half interest in his institute for the cure of inebriates at Springfield, and that Wilson said that, to clear up the title, he would have the land sold for taxes, and thereby cut out the heirs of his first wife, and that this was done, and that Wilson bought the land in at the tax sale, and had the deed made to his (Marvin's) second wife. Wilson denies all of this, but admits that he acted as agent for Mrs. Marvin in buying the land at the tax sale. This is the defendant's chain of title. The court found for the plaintiff, and the defendant appealed.

L. O. Neider and Thos. H. Musick, for appellant. A. H. Davis and M. Selph, for respondent.

MARSHALL, J. (after stating the facts).

The defendant contends that although Henry C. Page conveyed the land to Charles E. Page in July, 1863, and did not convey to Emma S. Page, through whom the defendant claims title, until 1869, nevertheless that, when Charles E. Page reconveyed the land to Henry C. Page in 1893, the title immediately inured to the benefit of Emma S. Page and those who claim under her, and that the conveyances by Henry C. Page after he so reacquired title in 1893, under which the plaintiff claims title, were ineffective as against the defendant's title (or that of Annah A. Marvin, if the contract aforesaid be not adequate to vest a right in the defendant). This is the single question in this case. It is conceded that Henry C. Page had no title to the land when he executed the warranty deed to Emma S. Page in 1869. The legal title was then firmly and absolutely vested in Charles E. Page by virtue of the warranty deed from Henry C. Page, made in 1863. Emma S. Page acquired, therefore, nothing at that time by that deed. Neither has Emma S. Page ever attempted to convey any title or right that she had to any one whomsoever except to reconvey it in 1893 to Henry C. Page, her grantor. The title that the defendant sets up was acquired through two sales of the land under two judgments for taxes. The question, therefore, is whether the reconveyance by Charles E. Page to Henry C. Page in 1893 inured to the benefit of the defendant.

The plaintiff contends: First, that under our statute an after-acquired estate inures only to the benefit of the grantee in a prior deed that purported to convey an indefeasible estate in fee simple; and, second, that the tax sale conveyed no title, because neither Emma S. Faull (Page) nor Naomi Wilson had any title at the time the judgments for taxes were rendered, and therefore only an inchoate right of title passed by the tax sales, which could be enforced only in equity, and is not available as a defense under a general denial in ejectment. The statute relied on is as follows: "Where a grantor, by the terms of his deed, undertakes to convey to the grantee an indefeasible estate in fee simple absolute, and shall not at the time of such conveyance, have the legal title to the estate sought to be conveyed, but shall afterwards acquire it, the legal estate subsequently acquired by him shall immediately pass to the grantee; and such conveyance shall be as effective as though such legal estate had been in the grantor at the time of the conveyance." Rev. St. 1899, § 4591. In 1825 the first statute bearing upon this subject was enacted in this state. The language of that statute was different from that employed in the present statute. Then the language as to the character of the conveyance was "an estate in fee simple absolute." Now it is "an indefeasible estate in fee simple absolute." The statute of 1825 was construed by the court in Bogy v. Shoab, 13 Mo. 365, and it was held that it meant an indefeasible estate in fee-simple absolute, and that it was not intended by the statute that after-acquired titles should inure to the benefit of anyone who held by virtue of a quitclaim deed, or of any deed that conveyed less...