Workman v. Moore

• Decision Date: 01 June 1915
• Docket Number: No. 17355.,17355.
• Citation: 177 S.W. 862
• Parties: WORKMAN v. MOORE.
• Court: Missouri Supreme Court

177 S.W. 862

WORKMAN v. MOORE.

No. 17355.

Supreme Court of Missouri, Division No. 1.

June 1, 1915.

Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.

Action by Julia Fisk Workman against Louise C. Moore. Judgment for plaintiff, and defendant appeals. Affirmed.

Hope, Green & Seibert, of St. Louis, for appellant. Arthur T. Brewster and Sam M. Brewster, both of Poplar Bluff, for respondent.

BROWN, C.

This suit was Instituted in the circuit court of Reynolds county on March 15, 1910, by filing a petition framed in pursuance of section 2535 of the Revised Statutes of 1909, to obtain a judicial declaration of title, as therein providel, to a tract of land in that county described as section 29, township 30 north of range 2, east of the Fifth principal meridian. The petition contains all necessary averments. The amended answer admits that the defendant is asserting title to the land, and avers that she is the sole and absolute owner. The defendant then sets out her own title under: (1) A deed executed in pursuance of a tax sale; (2) by limitation of three years under the provisions of section 11506a of the Revised Statutes of 1909; (3) that plaintiff is barred by the provision of section 1884 of said statutes prescribing a limitation of 30 years for bringing an action for the recovery of real estate under the circumstances therein stated; and (4) that plaintiff is barred by laches, because the defendant and those under whom she claims had, in good faith, believing themselves to be the owners, held and asserted title to said land for more than 30 years before the beginning of this suit, and that if plaintiff was at any title entitled to assert that defendant was the owner, she refrained therefrom for more than 10 years after the lands were sold for taxes, and is therefore guilty of such Inches and neglect as to preclude her from now asserting her title. At the trial the plaintiff introduced patents from the United States to Frank C. Ledbetter, dated February 10, 1860, granting all the land in controversy. She then introduced conveyances, duly recorded, by which the title of Ledbetter was duly vested in Robert W. Oliphant, the first husband of plaintiff on September 6, 1871. She then introduced a certified copy of the will of Dr. Robert W. Oliphant, dated April 19, 1881, and duly probated in the probate court of the city of St. Louis November 9, 1883, by which the same land was devised by the testator to this plaintiff, his wife. Dr. Oliphant died October 9, 1883.

The defendant introduced a collector's tax deed dated October 26, 1871, and recorded on the same day, and thereupon the plaintiff admitted that whatever title, if any, passed by that deed to Francis Sample, the grantee therein, had become vested in the defendant. The tax deed purported to convey 720 acres of other lands. Omitting these, and also the certificates of acknowledgment and record, it is in words and figures as follows:

"State of Missouri to Francis Sample. Tax Deed.

"The State of Missouri, Collector's Office, Reynolds County.

"To All to Whom These Presents shall Come— Greeting:

"Whereas, The State and county taxes on the following described real estate lying and being in the county of Reynolds in the state of Missouri, and which was assessed in the name of the person herein set forth, remained due the state and county, amounting to the sum of thirty-one dollars and sixty-three cents, including the interest and other incidental costs, to wit:

[U. S. R. S. 50 cents affixed.]

                To Whom                     Parts of Sec. or No. of
                  Assessed.      Acres. No. of survey.   Section
                Frank Ledbetter...  640     All of         29
                    No. of       No. of   Year axes        Tax
                Township.       Range.   Were Due For.  Dollars. Cts
                   30           2 East      1866          21      45
                

"And whereas, the collector of revenue for Reynolds county of said state, having on the 10th day of June, A. D. 1869, advertised said real estate for sale, according to law, to pay and satisfy said taxes and the penalties, and whereas, the said taxes and penalties remained due and unpaid on the `nineteenth' day of July, in the year one thousand eight hundred and sixty-nine, on which day judgment was rendered according to law by the county court of said county, against said real estate for the taxes, interest and costs due thereon, and whereas, the clerk of the county court of said county did, on the 25th day of July, 1863, in pursuance of law, make out and deliver to the collector of said county a `precept,' ordering the sale of said estate for the taxes, interest and costs due thereon, in pursuance of which said precept the collector of revenue of said county did, on the 4th day of October, 1861, expose to sale and did sell the said described tracts of land, for the taxes, interest and costs thereon, before the courthouse door of said county, and thereupon on the day last aforesaid, at the place aforesaid, Francis Sample became the purchaser of said real estate for the taxes, interest and costs thereon, he being the lowest bidder, for the sum of thirty-one dollars and sixty-three cents, due for the taxes of the year eighteen hundred and sixty-six, each tract as above described having been advertised and sold separately for the amount placed opposite the same: Now, therefore, I, James H. George, as collector of revenue of the county of Reynolds, ,and state of Missouri, in consideration of the premises, and in pursuance and by authority of an act of the General Assembly of said state in that case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said Francis Sample and to his heirs and assigns forever, the said real estate above mentioned and described, subject, however, to redemption by any person interested, who was insane, or who was a minor at the time of said sale under the age of 21 years, as by law it is provided: provided, nevertheless, and it is expressly understood, that the words grant, bargain and sell herein used shall not be construed or adjudged to amount to a covenant, that the grantor or bargainer was or is seized of an indefeasible estate in fee simple in the above described real estate, or that the same was or is free from incumbrances, or for further assurance thereof to be made to the grantee.

"To have and to hold the aforesaid granted, bargained and sold real estate unto the said Francis Sample and to his heirs and assigns forever.

"In testimony whereof, I have hereunto set my hand and seal at the office of the collector of the county aforesaid, this 26th day of October in the year of our Lord one thousand eight Hundred and seventy-one.

                 "[Seal.]             James H. George
                                 "Collector of Reynolds County."
                

Defendant then offered in evidence the collector's tax books of Reynolds county from the year 1871 to and including the year 1909, except the year 1891, for which the book was not found. The taxes were paid each year up to and including 1888. For 1877 and also for the years 1884 to 1888, inclusive, they were marked upon the books as paid by Sample. In 1892 the Wayne Lumber Company paid up the taxes from 1889 to that date, and they were afterward paid by those under whom the defendant claims. The first payment appearing on the books to have been made by Sample (1877) is dated February 12, 1878. S. J. Hawkins was then called and testified for defendant that in 1902 he was employed by her and R. A. Brown and E. W. Moore, her associates in title, to look after the property in Reynolds county, and had paid taxes on it for them and looked after it ever since, and had it surveyed in 1907. Defendant then introduced a sheriff's deed dated November 28, 1899, upon a sale under a tax judgment rendered August 16, 1899, against various parties, including Frank C. Ledbetter, the patentee, and Robert W. Oliphant. These were the only parties to the tax judgment through whom the plaintiff claims. Mr. Hawkins was then recalled by defendant, and stated that in 1902 the possession of the land had been turned over to him in writing by Mr. Dow, through whom the defendant claims title to this tract and about 17,000 acres of other lands, situated mostly in townships 29 and 30 north of ranges 1 and 2, east, in said county; that in section 8 of township 29 of range 2 there was a farm of 125 acres fenced, which had been used for farming purposes ever since he took charge of the land for the Wayne Lumber Company in 1902, and there was also about 54 acres of land in section 1 of the same township and range which had been used as a farm ever since he came, and also another farm, the size of which he did not mention, in Wayne county. Section 29 in controversy here could not be cleared up, and there was no place to get lumber off of it to advantage. There had been no timber cut...