Zimmerman v. Chicago G. W. Ry. Co.

• Decision Date: 12 June 1900
• Citation: 156 Mo. 561,57 S.W. 718
• Parties: ZIMMERMAN v. CHICAGO G. W. RY. CO.
• Court: Missouri Supreme Court

57 S.W. 718

156 Mo. 561

ZIMMERMAN v. CHICAGO G. W. RY. CO.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

TAXATION — TAX DEED — EJECTMENT — RECOVERY OF SUBSEQUENT TAXES — APPEAL AND ERROR — REVIEW.

1. Where a petition in ejectment contains a count for the recovery of taxes paid for the tax title, and also from the issue of a deed until the time of suit, as alternative relief in case of the failure of the tax title, such right of recovery is not barred by limitations if the right of ejectment is not barred. since it is incident to that action, and dependent thereon.

2. Findings of fact on a certain issue in an action at law will not be reviewed on appeal where no objections or exceptions were taken to any of the rulings of the court on such issue, and no declarations of law were asked, given, or refused.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Laura Zimmerman against the Chicago Great Western Railway Company, in ejectment. From a finding and judgment in favor of defendant on the first count of petition, and in favor of plaintiff on the second count, defendant appeals. Affirmed.

Dan. W. Lawler and James C. Davis, for appellant. Benj. Phillip and Maurice Phillip, for respondent.

BRACE, P. J.

This is an action in ejectment to recover possession of lot 1 in block 8 in the city of St. Joseph. The petition is in two counts: The first, in usual form in ejectment; the second, for the recovery of the amount of the taxes paid by plaintiff on the premises for the tax title under which she claimed on the first count, and afterwards, and for penalty, interest, and costs, under the provisions of section 1373, Rev. St. 1889. The answer, after admitting possession, was a general denial, plea of the statute of limitations, and payment of taxes before the execution of the tax deed. The case was tried by the court without a jury. The finding and judgment were for the defendant on the first count, and for the plaintiff on the second count, from which defendant appeals.

1. The land was sold on the 13th of January, 1887, for delinquent taxes for the years 1875 to 1886, inclusive. The taxes were paid to the city and certificate issued to the plaintiff, under the provisions of section 1358, Rev. St. 1889, on the 30th of September, 1887; and the tax deed made in pursuance thereof was executed on the 7th day of November, 1888. This suit was instituted on the 16th of March, 1897. Therefore the plaintiff's right of action for the recovery of the premises on her title under the tax deed was not barred by the statute of limitations, and as her right of action for the recovery of the taxes paid was an incident of...