Wilson v. Fisher
| Decision Date | 18 February 1903 |
| Citation | 72 S.W. 665,172 Mo. 10 |
| Parties | WILSON v. FISHER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Webster Circuit Court. -- Hon. Argus Cox, Judge.
Affirmed.
L. O Neider and Thos. H. Musick for appellant.
Henry C. Page obtained nothing by his quitclaim deed from Emma S Faull. Her interests in the premises have been conveyed to Naomi Wilson by the sheriff's deed for taxes in March 1885. She had lost all power to convey by reason of the judgment and sale for taxes. Naomi Wilson acquired all the rights imparted in the general warranty deed from Henry C. Page to Emma S. Page, and if so, then by reason of the judgment, execution and sale for taxes in March, 1894, and the deed made, executed and delivered by the sheriff of Webster county, conveyed all the interest of both Emma S. Faull and Naomi Wilson to Annah Marvin, appellant's grantor. Alexander v. Schrieber and Huterhagen, 13 Mo. 371. The deed from Henry C. Page to Emma S. Page conveyed a fee simple absolute, that is, an indefeasible estate in the premises which will fully appear from the recitals in the deed, which reads, "and the said party of the first part and his heirs the said premises in the quiet and pleasurable possession of the party of the second part, her heirs and assigns, against the said party of the first part, and his heirs, and against all and every person or persons, whomsoever, claiming or to claim, the same, shall and will warrant and by these presents ever defend." This language is an assertion of present seizing in Henry C. Page and will estop him and those claiming under him from asserting a title which would involve a denial of seizing at the time of making the conveyance. Chauvin v. Wagoner, 26 Mo. 552; Stow v. Wyse, 18 Am. Dec. 99. Although the title paramount was in Charles E. Page from 1863 to the date of his quitclaim to Henry C., in December, 1893, yet when he did obtain the title from Charles E. Page, it inured by reason of the statute of uses and trusts to Emma S. Faull, formerly Emma S. Page, and her privies. R. S. 1899, sec. 4591; Bogy v. Shoab, 13 Mo. 365. From the evidence, as clearly shown by the record in this case, plaintiffs are estopped from claiming title to the premises, by reason of section 4591, Revised Statutes 1899, and the court erred in refusing appellant's declaration of law asked in the trial of the cause.
A. H. Davis and M. Selph for respondent.
(1) The plea that the inchoate right of title by inurement passed to defendant by two successive sales for delinquent taxes -- the inurement still being inconsummate -- is at most only an equitable defense, and hence is not available under a general denial. Kennedy v. Daniels, 20 Mo. 104; Carman v. Johnson, 20 Mo. 108; White v. Davis, 50 Mo. 333; Ellis v. Railroad, 51 Mo. 200; Russell v. Whitely, 59 Mo. 196. There could be no doubt that the defense set up would be regarded as one in equity except for the provisions of section 4591, Revised Statutes 1899. This only applies to the grantee of one who conveyed before acquiring title, and not to the assignee of such grantee. In this case the defense can not stand unless the statute will pass the legal title to the assignee of the assignee of the grantee in such cases, even where, as in this case, both assignments are under execution sales and made before the inurement has been consummated by the grantor acquiring title. If these execution sales passed anything it was nothing more than an equity, and was not sufficient to constitute a legal defense. In White v. Davis, supra, it is held that purchaser at execution sale takes only the interest then held by execution debtor, and it can not be effected -- either enlarged or cut down -- by what may occur in the future. (2) Neither Emma S. Faull nor Naomi Wilson or her "unknown heirs" ever had such interest in the land as was subject to sale under execution. Waller v. Mardus, 29 Mo. 25; McIlvane v. Smith, 42 Mo. 45; White v. Davis, 50 Mo. 333; Morgan v. Bouse, 53 Mo. 219; Davis v. Greene, 102 Mo. 170; Block v. Morrison, 112 Mo. 343; Perkins v. Meighan, 147 Mo. 647; Young v. Thresher, 61 Mo.App. 413; R. S. 1899, sec. 3171. (3) The inchoate right of Emma S. Faull to a title by inurement was not such an interest in the land as was the subject of assessment and taxation, and could not be sold or forfeited for non-payment of taxes by her. Blevins v. Smith, 104 Mo. 583; Hilton v. Smith, 134 Mo. 499; Howell v. Jump, 140 Mo. 441. (4) The recorded deed from Henry C. Page to Emma S. Page was not constructive notice to Thompson, who was the purchaser in good faith for a valuable consideration and without notice of a prior deed by his grantor. Dodd v. Williams, 3 Mo.App. 278; Crockett v. Maguire, 10 Mo. 34; Ford v. U. C. Society, 120 Mo. 498.
This is an action in ejectment for the north half of the southeast quarter of section 21, township 28, range 16 west, 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 (nee Page) quitclaimed the land to Henry C. Page; on December 23, 1893, Charles E. Page conveyed 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 December 23, 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 Thomas 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 March 18, 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, one 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 Annah A. Marvin. On February 11, 1898, Andrew J. Marvin contracted with the defendant, William Fisher, to sell him the land for one hundred and fifty dollars, twenty-five dollars to be paid on October 1, 1898, and the balance in annual installments of twelve dollars and fifty cents, 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), Annah 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...
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