Wolf v. Brown
| Decision Date | 16 February 1898 |
| Citation | 44 S.W. 733,142 Mo. 612 |
| Parties | Wolf et al. v. Brown et al.; Prill, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John M. Wood Judge.
Affirmed in part; reversed in part.
J. W Collins for appellant.
(1) By the laws of Missouri it was t duty of respondents to have had the will of Robert G. Stafford recorded in the recorder's office of the city of St. Louis, where the real estate devised to them by his will is situated, within six months after its probate. The will not being recorded in Missouri until March, 1894, there was no notice of such will or of its provisions to anyone, until that time. R. S. 1889, secs 8899, 8900, 8901; R. S. 1879, secs. 3991, 3992, 3993; G. S. 1865, secs. 33, 34, p. 530; R. S. 1855, secs. 34, 35, p. 1572; Laws 1870, p. 166; Keith v. Keith, 97 Mo. 230; Van Syckle v. Beam, 110 Mo. 590; Cabanne v. Skinker, 56 Mo. 357; Slayton v. Singleton, 72 Tex. 213. (2) The law does not presume that a deceased person left a will. Slayton v. Singleton, 72 Tex. 213. (3) The respondents are guilty of gross negligence in failing to record the will of Robert G. Stafford, under which they claim title to the land in suit, until March, 1894. For about thirty-three years they concealed their title, held Thomas Stafford out as the owner of record of the land, and allowed the same to be assessed for taxes, and paid the taxes in his name, as if he were still living. Such conduct, concealment and negligence continued up to the time when, and for years after, Lydia C. Brown, appellant, and defendants acquired title to the land, and respondents are estopped in equity from defeating appellant's title and from setting up against her their title under the will. Stevens v. Dennett, 51 N.H. 334; Blair v. Wait et al., 69 N.Y. 116; Baird v. Ellsworth, 81 Iowa 629. (4) The trial court exceeded its jurisdiction in finding and decreeing that respondents recover of defendants possession of the lots in suit, and in ordering the clerk to issue a writ of possession in their favor for putting them in possession of same.
Alfred A. Paxson for respondents.
(1) The judgment on the special tax bill in the case of City v. Stafford, under which defendants deraign title, was void, having been rendered against Stafford on notice by publication, and he having been dead years before the institution of said suit. Williams v. Hudson, 93 Mo. 524; Graves v. Ewart, 99 Mo. 13; Childers v. Schantz, 120 Mo. 305. (2) There is no penalty attached for a failure to record the will under Revised Statutes 1889, section 8899; and there is no question of "notice" in the case. Rodney v. McLaughlin, 97 Mo. 430; Rodney v. Landau, 104 Mo. 260. (3) It does not appear that the respondents in any way induced the appellant or her grantors or Lydia C. Brown to buy the property, nor does it appear that respondents had any knowledge of the proposed purchase. "The first element of an estoppel by conduct is that there must have been a false representation or a concealment of material facts." St. Louis v. Schulenburg & Boeckler Lumber Co., 98 Mo. 617; DeBerry v. Wheeler, 128 Mo. 89; Corrigan v. Schmidt, 126 Mo. 304; Taaffe v. Kelley, 110 Mo. 137. (4) There is no estoppel pleaded. The so-called plea of estoppel in pais is plainly bad on its face. Blodgett v. Perry, 97 Mo. 272. (5) As no title to lands sold at sheriff's sale under a void judgment passes, Lydia C. Brown took nothing by her purchase and of course could transfer nothing to Daniel Prince, who had nothing to transfer to appellant "so that the appellant occupies the attitude of a stranger to the title attempting to invoke against the respondents an equitable estoppel; something which can not be done." Blodgett v. Perry, 97 Mo. 275. (6) A court of equity had undoubted jurisdiction of the case as made by the pleadings and evidence, and had full power to decree whatever was necessary or might become necessary to carry out its findings in the premises. 3 Pom. Eq. Jur., sec. 1399, note 4; Graves v. Ewart, 99 Mo. 18; Mason v. Black, 87 Mo. 346; R. S. 1889, sec. 2226; Henderson v. Beasley, 137 Mo. 199.
This is a suit in equity by plaintiffs as devisees of Robert G. Stafford, deceased, alias Thomas Stafford, against the defendants to set aside a judgment, and the sheriff's sale of certain lots in the city of St. Louis, for taxes, and deeds through which defendants derived title under said judgment and sale, on the ground that at the time the judgment was rendered under which the lots were sold by the sheriff, and for many years prior thereto, said Stafford was dead. There was judgment in favor of plaintiffs, from which the defendant Anna Prill alone appeals.
Robert G. Stafford, alias Thomas Stafford, bought the lots involved in this litigation from the city of St. Louis in the year 1854, where he then lived. They were then, and have ever since been, uninclosed and unimproved. In 1855 he was married to the plaintiff, Christina Stafford, who had two minor children by a former husband, and who are her co-plaintiffs. They continued to reside in St. Louis for several years and then moved to Jones county, Iowa, where Stafford owned two tracts of land, and while there he made his will in all respects in accordance with the laws of this State. This will was made June 11, 1860. By it he devised the lots in question to the plaintiffs. Soon thereafter he moved with his family back to St. Louis, where he died on January 16, 1861. About three months thereafter his widow and her children moved back to Iowa, where she had the will probated, the larger part of the property owned by the testator and disposed of by the will being in that State. The will was admitted to probate in the city of St. Louis on February 19, 1894.
The title to the land stood on the records of the city of St. Louis in the name of Thomas Stafford in 1861, and remained so until June 28, 1888, when said lots were sold and conveyed by the sheriff of the city of St. Louis to defendant Lydia C. Brown, for $ 134, under and by virtue of a special writ of execution issued to said sheriff out of the St. Louis circuit court, upon a judgment rendered on a special tax bill in said court, wherein the city of St. Louis was plaintiff and said Thomas Stafford was defendant, and which suit was brought in 1885 by the city of St. Louis against said Stafford, upon a special tax bill of $ 60.60, issued for benefits assessed against said lots by commissioners in condemnation proceedings theretofore brought, for the opening of Missouri avenue, on which said lots are situated. The service of process in the tax suit was by publication. The judgment in that case was rendered against Thomas Stafford in 1888, twenty-seven years after his death. Lydia E. Brown, after her purchase of said lots, conveyed lots fifteen and sixteen to one Daniel Prince, who by deed dated May 23, 1890, conveyed them to the defendant, Anna Prill. Said Brown coveyed lots seventeen and eighteen to the defendants Appelmeyer and Young, by deeds dated respectively December 29, 1890, and January 23, 1891.
It was decided by this court as early as 1854 that a judgment against a person who was dead at the time of the...
To continue reading
Request your trial