73 Mo. 53 | Mo. | 1880
This is an action of ejectment to recover possession of lot 27, block 26, West Kansas addition to the City of Kansas. The answer of defendant Bell is a general denial. The answer of defendants Smith and Nellie Smith, his wife, sets up an equitable defense. This answer was demurred to and the demurrer sustained, and the action of the court in this respect is the chief ground relied upon for a reversal of the judgment. The demurrer to the an-' swer admitted the following facts set up in the answer, viz : that plaintiff’s title to the property in question is derived through a sale thereof made by the sheriff by virtue of a certain execution which issued on a judgment rendered in a suit instituted by plaintiff on the 18th day of April, 1874, against Edward Dey'oeger, S. J. Eisher and Samuel Montgomery, to enforce the lien of a certain tax bill against said property; that said Deyoeger was the original owner
It is provided in an act amendatory of the charter of Kansas City, in section 25, (Acts 1872, p. 411,) that persons interested in the land sought to be charged, who are not made defendants, shall not be affected by any judgment obtained m any suit on any , , 7 n special tax bill, nor by any sale under such judgment; “and if they claim through or under any parties defendant, prior to suit brought, may redeem from the purchaser or otherwise assert their rights‘■according to equity and good conscience.” Applying this act to the facts set up in the answer and admitted by the demurrer, it is clear that defendant Nellie Smith’s interest in the land was unaffected by the judgment rendered in the tax bill suit,
Aside from the error committed in sustaining the demurrer, personal judgment for damages was rendered against Nellie Smith, and she being a married woman, this is sufficient to authorize a reversal of the judgment. Lincoln v. Rowe, 64 Mo. 138, and cases cited. Judgment reversed and cause remanded,