Zweigart v. Reed

• Decision Date: 31 May 1909
• Parties: ZWEIGART v. REED.
• Court: Missouri Supreme Court

119 S.W. 960

221 Mo. 33

ZWEIGART v. REED.

Supreme Court of Missouri, Division No. 1.

May 31, 1909.

1. APPEAL AND ERROR (§ 987) — REVIEW — FINDINGS OF FACT IN EQUITY.

In so far as the pleadings in a case present an equitable issue, the Supreme Court has a right on appeal to review the evidence, and is not bound by the findings of fact of the chancellor.

2. TAXATION (§ 734) — PURCHASER AT TAX SALE—KNOWLEDGE BASED ON INQUIRY AS TO TAX DEED.

A purchaser at a tax sale, with knowledge that some one beside the owner of the title of record paid taxes on the land, is placed on inquiry as to the claim of such party.

3. TAXATION (§ 734)—SALE FOR TAXES—VALIDITY OF TAX DEED.

If the purchaser at a tax sale knew that the suit for taxes was not against the real owner, though against the record owner, the tax deed would be unavailing as between him and the record owner.

4. TAXATION (§ 734) — SALE FOR TAXES — FAILURE TO SUE REAL OWNER—NOTICE TO PURCHASER.

If the purchaser at a tax sale had such notice as would have placed a prudent man on inquiry as to the facts, and such inquiry would have revealed the fact that the real owner had not been sued, he would be in the same position as if he had actual knowledge of the fact, and in equity such notice would be construed to be actual notice.

5. TAXATION (§ 798)—SALE FOR TAXES—CANCELLATION OF DEED.

If the purchaser at a tax sale has actual notice not only that tax receipts were given for taxes, but that the real owner was not a party to the judgment under which he bought, as between him and the real owner, the latter would be entitled to a judgment canceling the sheriff's deed to the purchaser, and his quitclaim to another.

6. CONSTITUTIONAL LAW (§ 285)—DUE PROCESS OF LAW.

If the parties to a suit for taxes had notice of the real ownership of the land, and the real owner was not made a party to the suit, as required by Rev. St. 1899, § 9303 (Ann. St. 1906, p. 4274), or notified in any way that it was pending, in a suit by such owner to avoid the sale for taxes to permit the tax sale purchaser to recover would deprive the owner of his property without due process of law.

7. VENDOR AND PURCHASER (§ 224)—RIGHTS UNDER QUITCLAIM.

One who takes a quitclaim deed from a purchaser at a tax sale as his muniment of title takes title subject to all the equities existing between the owner of the land and the purchaser at the tax sale.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by C. F. Zweigart against John I. Reed. From a judgment for plaintiff, defendant appeals. Affirmed.

C. H. Skinker, for appellant. E. H. Gamble, for respondent.

GRAVES, J.

Plaintiff sues in two counts. By the first, which is an ordinary count in ejectment, he asks for the possession of 160 acres of land in Polk county. By the second count, which is in the nature of a bill in equity, and in which he pleads all of his evidence, he seeks to cancel certain deeds covering said land, charging, among other things, collusion and fraud. This count is exceedingly lengthy, and it will serve no good purpose to detail it further, as all the facts proven were fully pleaded, and a statement of the facts proven will be sufficient to indicate the questions at issue. Defendants filed appropriate answers, and reply was in conventional form.

Facts proven and admitted make a case, in outline, as follows: In August, 1860, James Smith obtained a patent to the land in dispute. March 1, 1895, James Smith and wife conveyed by warranty deed to Thomas H. N. Smith. December, 1899, Thomas H. N. Smith, joined therein by his wife, by quitclaim deed conveyed the land in dispute to the plaintiff, but this deed was never placed of record. Plaintiff says that he sent this deed in a letter addressed to the recorder of Polk county for record shortly after it was made to him, requesting the recorder to send the amount due and he would remit the amount, but that he never heard anything further until he received the deed in the mail in an envelope postmarked "Bolivar, Mo." but there was no letter inclosed. Before receiving this first deed in return, and thinking the same lost, plaintiff procured from Thomas H. N. Smith and wife a warranty deed to the land, which was of date October 15, 1903. Plaintiff further says that on May 17, 1902, he went to the collector's office, then in charge of P. M. Wood, collector, and requested the taxes due upon the land in question, and Mr. Wood gave him a memorandum showing the taxes due to be $12.32. This memorandum was in evidence. Plaintiff then discovered that the land was assessed at $400, whilst adjoining quarter sections were only assessed at $200. Mr. Wood agreed to take up the matter with the county court, and on August 6, 1902, Mr. Wood wrote plaintiff that the valuation had been cut down to $200, whereupon the plaintiff wrote for the amount of the taxes, and receiving a statement that they were $7.99 for the years 1900, 1901, and 1902, he sent said amount by post office money order to P. M. Wood, collector, and received two tax receipts in return, one for $5.69 for the year 1900, as expressed on the face, but the collector, Wood, says that it should have been for the years 1900 and 1901, and the form of the receipt would so indicate. The other was for $2.30 for year 1902. Both were of date August 16, 1902. Wood's letter of August 6th, supra, was in evidence. It also appears in the record that, after Mr. Wood understood that the county court had reduced the taxes to one-half of the original amount, he placed in pencil the several amounts due in the back tax book. An exemplified copy of the book was in evidence, and such pencil marks were thereon. It also indicated, as per stipulations filed, a tax receipt No. 705 to Smith of date August 16, 1902, and here it might be well to state that the two tax receipts above mentioned were made out in the name of Smith. It also indicated that on June 10, 1902, a back tax bill had been made out numbered 25. By the stipulation it was admitted that the pencil marks as to the taxes were made prior to August 16, 1902, the date of the tax receipt.

By T. H. N. Smith, the plaintiff showed: That he (Smith) was a dentist in Maysville, Ky., where plaintiff also resided; that they were boys together; that he got the land from his father, James Smith; that T. H. B. Dunnegan was his agent for the payment of taxes; that through Dunnegan he had paid the taxes up to and including the year 1899, and produced Dunnegan's letter with reference to the taxes for the year 1896 and said that he had others of a similar character; that Dunnegan would send him notices each year, and he would send the money; that in December, 1899, he sold the land to Zweigart and made him a deed to it; that in the fall of 1900 he got the usual notice from Dunnegan about the taxes for the year 1900, and wrote him that he had sold the land to Zweigart; that October 15, 1903, he made Zweigart a second deed; that Dunnegan acted as agent for his father; that he (witness) did not know suit had been brought for the taxes when he made this second deed; that he never heard from Dunnegan after he notified him that Zweigart owned the land. The record shows that Zweigart paid the taxes for 1903 and introduced his receipt in evidence. It further appears that on this tax bill No. 25, suit was brought for the taxes of 1900, and at the August term of the circuit court, on August 22, 1902, a judgment was rendered in favor of P. M. Wood, collector, for such taxes. It will be observed that this judgment was seven days after the tax receipt for the years 1900 and 1901. Under this tax judgment the land was sold and bought in by T. H. B. Dunnegan on December 8, 1902, and a sheriff's deed made to him of said date. May 27, 1904, Dunnegan by quitclaim deed conveyed to defendant John I. Reed.

For the defendant, Dunnegan testified: That he had paid taxes for Smith and his father; that he had never heard that plaintiff owned the land until after he purchased it; that before the tax sale he learned that the taxes had been paid in part; that he knew after suit was brought that somebody had paid part of the taxes; that he found that out before the sale; that he did not know whether the taxes had been paid before judgment was rendered or not; that he did not examine to see the date when the taxes were paid; that the collector or clerk told him the costs were not paid; that he supposed the land was selling for costs; that he received no letter from Thomas H. N. Smith in 1900, or at any other time, notifying him that the land had been sold to plaintiff; that the land was sold by 40-acre tracts.

P. M. Wood, the collector, testified: That he remembered the circumstances of the plaintiff coming to his office some time in 1902 in regard to some taxes; that he did not remember the name, but he was there looking after some back taxes and was kicking about the amount; that he (witness) went before the county court and told them the assessment was too high, and he un...