93 Mo. 62 | Mo. | 1887
In an action, commenced in the circuit court of the city of St. Louis to the October term, 1881, thereof, in which the state of Missouri, at the relation of Nathaniel O. Hudson, collector of said city, was plaintiff, and the “unknown heirs of Mary O. Smith” were defendants, for the recovery of delinquent taxes for the year 1879, due on lot ninety-eight, in block 31, in North St. Louis addition, the plaintiff, on the twenty-second of March, 1882, recovered judgment for the amount of taxes found to be due thereon for the year 1879, and costs; on the seventh of April, 1882, special execution was issued on said judgment, by virtue of which the sheriff, on the twenty-second of May following, sold said real estate to Mary Wing for the sum of five hundred and eighteen dollars. The said Mary Wing received the sheriff’s deed for said real estate, and thereafter conveyed the same to Mary E. Tanner, who, on the tenth of June, 1882, gave a deed of trust on said real estate to John. W. Collins, and there.after made conveyances of said real estate to Anna M. Hilton. On the fifth of April, 1883, the present action was instituted in said circuit court by the plaintiffs, Lamar Fontaine, and Lemuella S. Fontaine, his wife, Mary A. Brickell, W. S. Reid, John W. Reid, and M. M. Puroyer, against the defendants, the said Nathaniel
W. C. Jamison testified that in the year 1844 or 1845, M. C. Cheatem, who, with H. B. Brickell, were trustees of the property in controversy, under a conveyance made by Mary O. Smith in 1843, employed him to look after the lot and pay the taxes on it; that for a time Mr. Cheatem sent him the money to pay the taxes; that for some years he continued to pay the taxes on it, till finally he leased it to Messrs. Schulenberg & Boeckler for the taxes; that he rented it to them between 1850and 1860, they agreeing to pay the taxes; that thereafter he gave the matter no further attention, except that once he tried to sell the lot, and drew a deed conveying the same, which deed was signed by M. C. Cheatem and H. B. Brickell as grantors; that in all he did he acted for Cheatem and knew no one else represented or interested in the lot; that it was assessed in the name of M. C. Cheatem from
Chas. W. Behrens testified that he was secretary of the Schulenberg & Boeckler Lumber Company; that he-has known the property in question for fifteen or sixteen years ; that it was used by, and in the possession of, A. Boeckler & Company, then of Schulenberg & Boeckler, and then of the Schulenberg & Boeckler Lumber Company ; that these parties used said lot in connection with their mill and for piling lumber; that they had always paid the taxes, except for 1879.
A. Boeckler testified that he was president of theSchulenberg & Boeckler Lumber Company; that that company succeeded to the business of Schulenberg & Boeckler ; that Brotherton & Dryden first had possession •of the lot from 1858 to 1864; that they were succeeded in the possession by Dryden, Overstoltz & Company, in 1864, and they by A. Boeckler & Company, in 1869; and the latter concern afterwards by Schulenberg & Boeckler, and they by the Lumber Company; that from 1864 to-1869, the lot was rented, the occupants agreeing to pay the taxes as rent; that in 1869, A. Boeckler & Company took it and continued holding and using the same as their predecessors, and, ever since, the successors aforesaid of A. Boeckler & Company have continued to hold and use the lot; that the Lumber Company and their predecessors had always paid the taxes, except those of 1879, which were overlooked ; and, on cross-examination, this witness, testified: “We never had a lease from Cheatem; knew that Jamison had control of the lot; never had a contract with Jamison or Cheatem directly. We took possession and paid the taxes; it was so done by Dryden, Overstoltz & Company, and we stepped in their shoes. I never saw or heard of Mary O. Smith before the tax sale, nor of the plaintiff's in this suit.”
It was further shown by plaintiffs in evidence, that Mary O. Smith died in May, 1868, leaving as her heirs,
The action of the court in excluding the deeds offered in evidence from some of the heirs-at-law of Mary O. Smith, who are not, to some of those who are, plaintiffs in the cause, not having been complained of in the motion for a new trial is not before us for review. The foregoing oral testimony is the only evidence in the record tending to show that plaintiffs had title to, or possession of, the aforesaid lot 98, at the time this suit was instituted. In the petition in the back-tax suit it was alleged that the defendants, “the unknown heirs of Mary O. Smith are the owners of said real estate by descent, and that their names and places of residence cannot be inserted herein because they are unknown to plaintiff.” The order of publication followed the petition ; it was shown by the deputy clerk that the judgment therein was not written up until December 17, 1882; that the only minutes kept of the proceedings were the memoranda endorsed on the papers and kept in the minute-book, and that the record of the proceedings of the court in the back-tax cases was never signed by any of the judges. In regard to this last evidence, it is only necessary to .say that it is not essential to the validity of records of
This baseless attack on the execution in the back-tax suit being eliminated, we may now enter upon a consideration of the real case presented in the pleadings and evidence. With this excision, the case presented in plaintiff’s petition is : That plaintiffs are the owners of, i. e., hold the legal title to, the lot in question; that they are in possession of the same, and that the defendants have spread upon the public records conveyances purporting to vest in certain of the defendants the legal title to said lot under a judgment, execution, sale, and sheriff’s deed, which are invalid for the reason that the plaintiffs, the owners of said lot, were not made parties to the suit in which such judgment was rendered. The fact that the plaintiffs were not made parties to the suit, could not, per se, in any way vitiate, or affect, the validity of the judgment, or give them any show of right to have it cancelled ; if they had been made parties to the suit, and an invalid judgment had been rendered therein ; or, if upon the face of the proceedings if appeared that they had been made parties to the suit,
The case, presented in this way, shows that this proceeding is an attempt, under the guise of a bill in equity -to remove a cloud, to try the legal title to the premises. If plaintiffs have any title at all to the premises, it is a legal title; if defendants have any title, it is a legal title apparent upon the face of the record. The only question to be determined is, which has the paramount legal title. The case presents no feature calling for the interposition of the extraordinary power of a court of equity. It is not even averred in the petition, nor is there any evidence tending to show, that defendants ever have, or are asserting, any claim or title to the premises, and, for all that appears in this record, they may make no claim to the property. At all events, the law has placed at the service of plaintiffs an action, if they are in possession as they' claim, by which they could ascertain that fact, and by which the defendants, could be required, if they made any such claim, to assert it in an action of ejectment, or forever after hold their'peace ; and if they made none, to make such a disclaimer without costs as would put plaintiffs’ title as to them forever at rest. This was the
But could it be conceded that the legal title to the premises could be tried in this equitable proceeding, it is not perceived how plaintiffs’ action could be maintained on the evidence in the case. It will be observed that plaintiffs, to show title in themselves, simply trace the relationship between themselves and Mary O. Smith, and if they have shown any title at all to the premises it is such title as they have acquired by descent from Mary O. Smith. If she had no title, then plaintiffs have none, and there is not a scintilla of evidence tending to show that Mary O. Smith ever had any title to the lot, and in this connection it may be remarked that, upon the case made solely by the plaintiffs (for the defendants claimed nothing and proved nothing), if Mary O. Smith had no title, “her unknown heirs by descent” had none. Defendants acquired none under the tax sale and sheriff’s deed, and the alleged cloud is in the sky, this whole litigation in nubibus; nor have the plaintiffs succeeded in bringing it to earth by showing possession of the premises. There is no evidence tending to show that Mary O. Smith, or plaintiffs, who claim under her, have ever been in possession. On the contrary, it appears from the evidence, that for more than twenty-five years prior, and up to the timé of the institution of this suit, the lot had been in the actual and continuous possession of parties not holding under Mary O. Smith, or either of the plaintiffs herein, but who, if they were tenants of anybody, were tenants of M. C. Cheafcem, or of M. C. Cheatem and H. B. Brickell, and there is nothing in the evidence tending to show that in the letting of the lot to the first
The judgment of the circuit court is affirmed.